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

                                                                            FILED
                                                                         January 14, 2008

                                     No. 07-60378                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


SHIRLEY PRICE

                                                  Plaintiff-Appellant
v.

LOCKHEED MARTIN CORPORATION; LOCKHEED MARTIN
AERONAUTICAL SYSTEMS COMPANY

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:04-CV-00123


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:1
       The case arises from a workplace shooting in which Plaintiff-Appellant
(“Price”) was a bystander. Price first appeals a grant of summary judgment in
favor of Defendants-Appellees (“Lockheed”) on the issue of whether Plaintiff-
Appellant’s exclusive recovery for her tort claims is the Worker’s Compensation
Act (“the Act”). Though the district court also held that Price could not recover



       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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as a bystander because she lacked a close relation with any of the victims, Price
does not appeal that holding. Second, Price appeals the district court ruling that
she cannot succeed on her putative federal constitutional claims because
Lockheed is not a state actor. Lastly, she appeals the district court ruling that
she cannot recover under Article VII, § 191 of the Mississippi Constitution and
Mississippi Code Annotated § 79-1-9 because the state constitutional provision
creates no private right of action and because the statute does not apply to
termination of employment at will. We affirm the district court on all of the
challenged grounds.
                                        I.
      This lawsuit is one of many arising out of a tragic incident that occurred
at the Lockheed Martin facility in Meridian, Mississippi on July 8, 2003 when
Douglas Paul Williams, a long-time employee of Lockheed, went on a shooting
rampage at the Lockheed facility, in which he shot numerous co-workers, killing
seven and wounding others. Williams, who was well-known by his co-workers
and the Lockheed management to harbor extreme racial hatred toward his
African-American co-workers, arrived at the plant with firearms in his truck.
While attending a mandatory training course being held in a building on plant
grounds, Williams exited the building shortly after the training session began,
retrieved a shotgun and a Mini-14 semiautomatic rifle from his truck, and
reentered the building where the training course was being held. He then
opened fire, shooting at least five persons. Next, he left that building and
entered the main plant building where he shot the remaining victims, following
which he took his own life with a self-inflicted gunshot wound.
      Price was also a longtime employee at the Lockheed plant. She alleges she
was traumatized by the events she witnessed that day, and she seeks to recover
for her resulting emotional distress. Price and the assailant, Williams, had an



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intimate relationship for fourteen years, and they had been living together for
approximately four years.
         Two days after the shooting, at a memorial service held for the shooting
victims at a church in Meridian, Price disrupted the remarks of the Meridian
Mayor John Robert Smith when she stood up and began yelling that Williams
was also a victim. Price’s tirade continued until she was led out of the service.
Later, Lockheed received reports and Williams’s daughter testified that at a
private service held for Williams, Price made remarks that she would finish
what Williams had started. Lockheed determined that Price’s employment
should be terminated because of her improper behavior at the victim’s memorial
service and because of concern about disruption at the plant if she were to return
to it.
                                        II.
         This Court reviews a grant of summary judgment de novo. Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (citing Cousin v. Small, 325 F.3d 627,
637 (5th Cir. 2003)).       “Summary judgment is proper ‘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.’”
Id. (quoting FED. R. CIV. P. 56(c)). “A genuine issue exists when ‘the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).          “All
reasonable inferences are drawn in favor of the nonmoving party, but the
nonmoving party ‘cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.’” Id. (quoting Turner
v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007) (internal
quotations omitted)).
                                        III.



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      With regard to Price’s claims for emotional distress damages, the district
court held, based on Fifth Circuit precedent stemming from this same incident
at Lockheed, that Price could not recover for her emotional distress damages
because the Act was her exclusive remedy. See Tanks v. Lockheed Martin Corp.,
417 F.3d 456, 460 (5th Cir. 2005) (holding that the Act is an employee’s exclusive
tort remedy applicable to this incident at Lockheed). The district court found
that Price’s allegations regarding this issue are “practically indistinguishable”
from those in Tanks, and as such, her claims are “barred to the same extent as
those in Tanks” because her injuries are claimed to have resulted from
Williams’s intentional acts.    The district court also explained that Price’s
argument that Lockheed’s own intentional acts caused her injury is also
governed by Tanks as well as by other Mississippi case law. See Id. at 467 n. 40;
Peaster v. David New Drilling Co., Inc., 642 So. 2d 344, 347–48, 349 (Miss. 1994)
(employer must act “with actual intent to injure” for its acts to fall within the
intentional tort exception to the Act’s exclusivity; recklessness, negligence, or
gross negligence are insufficient).    The district court concluded that the
allegations against Lockheed on this issue were insufficient to constitute actual
intent.
      The district court also held that Price could not recover as a bystander
because she lacked a close relation with any of the victims. See Entex Inc. v.
McGuire, 414 So. 2d 437, 444 (Miss. 1982) (one of the prerequisites for recovery
as a bystander is that plaintiff and a victim were closely related); Satchfield v.
R.R. Morrison & Son, 872 So. 2d 661, 667 (Miss. 2004). Price has not addressed
this holding on appeal.
      With regard to Price’s federal constitutional claims, she argues that by
terminating her employment, Lockheed violated her rights under the First and
Fourteenth Amendments. The district court found that Lockheed, as a private



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employer and not a state actor, was not subject to constitutional restrictions.
See U.S. v. Reyes, 87 F.3d 676, 680 (5th Cir. 1996).2
       Price also asserts a cause of action under the § 191 of the Mississippi
Constitution because she was terminated from her employment at Lockheed.
This provision states: “The Legislature shall provide for the protection of the
employees of all corporations doing business in this State from interference with
their social, civil, or political rights by said corporations, their agents or
employees.” MISS. CONST. § 191 (1890). Price can claim no cause of action under
this provision as it is “not self-enacting, but rather is only enforceable under its
enacting legislation.” Rosamond v. Pennaco Hosiery, Inc., 942 F. Supp. 279, 285
(N.D. Miss. 1996); see also Cooper v. Drexel Chem. Co., 949 F. Supp. 1275, 1282
(N.D. Miss. 1996). Moreover, the enacting legislation provides: “Any corporation
doing business in this state shall be liable to a penalty of two hundred fifty
dollars ($250.00) for every unlawful interference with the social, civil, or political
rights of any of its agents or employees, and the same may be recovered by suit,
to be brought by the injured party.” MISS. CODE ANN. § 79-1-9 (Supp. 1995). The
district court concluded that Price was an at-will employee and that she had no
social, civil, or political right which could have been violated by her termination.
Though Price asks this Court to certify this issue to the Mississippi Supreme
Court, such certification is foreclosed by our opinion in Tanks, 417 F.3d at 460.
                                             IV.
       Upon review of the parties’ arguments and the record, we find no error in
the district court’s grant of summary judgment. Thus, we affirm for the reasons




       2
         Price argued before the district court that she had been terminated based on gender
discrimination in violation of Title VII of the Civil Rights Act, and the court granted summary
judgment to Lockheed on this issue because Price failed to present evidence that Lockheed’s
articulated reasons for her termination were a pretext for discrimination. Price has not raised
her Title VII argument nor challenged the court’s findings thereon in this appeal.

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stated above and those stated in the district court’s well-reasoned order.
Accordingly, we AFFIRM.


AFFIRMED.




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