MEMORANDUM OPINION AND ORDER
This mаtter is before the Court on the Defendant Dr. Martha Saunders’ Motion to Dismiss [62] and the Plaintiff Diane Stark’s Motion to Strike Reply Since the Reply Was Filed Eleven Days Past Deadline Without Court Permission (“Motion to Strike”) [90]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that both motions should be granted in part and denied in part.
BACKGROUND
Plaintiff asserts numerous federal and state law claims relating to her former employment with the University of Southern Mississippi (“USM”) as the Senior Associate Athletics Director for Internal Affairs. Defendant Dr. Martha Saunders was the President of USM at certain times relevant to the Plaintiffs employment. Defendant Jeff Hammond was the Interim Athletics Director at certain times relevant to the Plaintiffs employment. The Defendant Board of Trustees of State Institutions of Higher Learning (the “Board”) is charged with the management and control of Mississippi’s state institutions of highеr learning, such as USM, under Mississippi law. See Miss. Const, art. 8, § 213-A; Miss.Code Ann. § 37-101-1.
On November 7, 2012, Plaintiff filed suit against USM, Jeff Hammond, and Dr.
On February 6, 2013, the Plaintiff filed an amended pleading in the state court, adding federal claims under Title VII, the Equal Pay Act, and the Lilly Ledbetter Fair Pay Act. (See State Am. Compl. [5 at ECF p. 74].) These federal claims center upon alleged gender discrimination.
On February 15, 2013, Hammond removed the proceeding to this Court. (See Notice of Removal [1].) Subject matter jurisdiction is asserted under Title 28 U.S.C. § 1331 based on the federal claims alleged in the Plaintiffs amended state court pleading. On February 18, 2013, USM and Dr. Saunders joined in and consented to the removal. (See Doc. No. [3].)
On July 10, 2013, Plaintiff filed her Amended Complaint [38] in this Court, adding the Board as a Defendant. The Amended Complaint also includes a cause of action under 42 U.S.C. § 1983 for alleged deprivations of Plaintiffs Equal Protection and Due Process rights, as well as her rights guaranteed by the First Amendment of the United States Constitution. (See Am. Compl. [38] at ¶ 7.)
On August 26, 2013, Dr. Saunders filed her Motion to Dismiss [62] pursuant to Federal Rule of Civil Procedure 12(b)(6). Dr. Saunders seeks the dismissal of all claims asserted against her in her individual capacity under 42 U.S.C. § 1983. On November 27, 2013, the Plaintiff filed her Motion to Strike [90], arguing that Dr. Saunders’ Reply [89] in suрport of the dismissal motion should not be allowed due to untimeliness.
DISCUSSION
I. Motion to Strike [90]
Dr. Saunders’ Reply was due to be filed by November 14, 2013, since the Plaintiff filed her Response to the Motion to Dismiss [87] on November 4, 2013. See Fed.R.Civ.P. 6(a), (d); L.U.Civ.R. 7(b)(4). Dr. Saunders admits that the November 25 Reply [89] was untimely, but argues that the Plaintiff can show no prejudice as a result of the late filing. Dr. Saunders further asserts that she mistakenly believed Plaintiffs counsel would not object to the late filing since the Plaintiff obtained unopposed extensions of time from the Court on several occasions.
The Court agrees that there is no evidence of prejudice to the Plaintiff resulting from the eleven-day delay in Dr. Saunders’ filing of the Reply. However, a party seeking an extension of time to act after a deadline expires must show “excusable neglect” under Federal Rule of Civil Procedure 6(b)(1)(B), and prejudice to the opposing side is only one factor that courts usually consider in such a determination. Other factors include “the length of the applicant’s delay and its impact on the proceeding, the reason for the delay and whether it was within the control of the movant, and whether the movant has acted in good faith.” 4B Charles Alan Wright et al., Federal Practice and Procedure § 1165 (3d ed.) (citations omitted). Dr. Saunders’ mistaken assumption that Plain
More important, Dr. Saunders has failed to move for leave to file the Reply out of time. Under Rule 6(b), a court may extend a period of time for a party to act “with or without motion or notice if the court acts, or if a request is made, before the original time or its expiration expires”. Fed.R.Civ.P. 6(b)(1)(A) (emphasis added). “[A]fter the time has expired”, a party must file a “motion” in order to obtain relief from the expired deаdline. Fed. R.Civ.P. 6(b)(1)(B); see also Lujan v. Nat'l Wildlife Fed’n,
II. Motion to Dismiss [62]
A. Standard of Review
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
B. Analysis
Dr. Saunders asserts that she is entitled to qualified immunity on the Plaintiffs constitutional claims brought under 42 U.S.C. § 1983. Section 1983 does not provide a general remedy for state law torts or allow access to federal courts for all individuals suffering injuries at the hands of state actors. White v. Thomas,
A state official sued in his individual capacity under § 1983 is protected by qualified immunity insofar as his “ ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” McCreary v. Richardson,
Plaintiffs First Amendment, Equal Protection, and Due Process claims will now be measured against the preceding standards.
1. First Amendment
“[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garceta v. Ceballos,
The following allegations of the Amended Complaint arguably implicate a First Amendment retaliation claim:
Mr. Jeff Hammond has used his position to threaten, intrude upon, frighten, attempt to extract funds from, act outrageously, intimidate, insult, disrespect, yell at, confront, and threaten violence in the work place of Plaintiff. Dr. Saun*833 ders intentionally ratified his misconduct and intentionally contributed to the work place hostility by her acts аnd ratifications.
As a direct and proximate result of the foregoing tortious actions of Mr. Hammond, Plaintiff filed appropriate grievances and claims with USM. President Saunders and her staff refused to provide appropriate relief to Plaintiff. Indeed, President Saunders stated, words to the effect, that Plaintiff deserved or probably “needed” her mistreatment or words to that effect.
Plaintiff complained and reported the wrongdoings of Mr. Hammond to her supervisors, Human Resources, and others to include the President, Dr. Saunders. Furthermore, as previously accentuated, the specifics, as enumerated herein, were provided IHL. The President was informed of Plaintiffs complaints; yet, sided with Mr. Hammond and took the position that Plaintiff deserved her mistreatment. She ratified the misconduct of Mr. Hammond and provided no relief to Plaintiff. IHL also sided with Mr. Hammond to the distinct detriment of Plaintiff.
The Defendаnts, overtly, actively, and/or by ratification, and/or by and through their agents and representatives, retaliated against Plaintiff, who had reported and/or refused to engage in illegal acts or illegal conduct of Defendants. Mr. Hammond had assaulted Plaintiff and wrongfully placed her in fear of bodily harm. Although the assault was not consummated by a battery, Mr. Hammond’s conduct did place Plaintiff in-reasonable apprehension of bodily harm. She reported this conduct. Then, she was retaliated against for her reporting these acts. The Defendants countenanced and/or ratified this conduct.
As a proximate result of Plaintiff reporting the foregoing misconduct, she was wrongfully dismissed and terminated and retaliated against.
It is evident shé was fired because she had complained about the harassment of her by Mr. Hammond. In spite of asking for assistance from USM, no assistance was forthcoming. Indeеd, USM, via Mr. Hammond and their Human Resources Department, and Dr. Saunders aggressively mistreated Plaintiff and retaliated against her for complaining about her mistreatment.
(Am. Compl. [38] at ¶¶ 11, 13, 21, 25, 26, 35.)
Dr. Saunders largely challenges the sufficiency of Plaintiffs pleading as to the “public concern” element of her retaliation claim. Thus, the Court initially considers the threshold matter of whether .the Plaintiffs grievances' regarding Jeff Hammond were made pursuant to her official employment duties. See Garcetti
Neither the allegations of the Complaint nor the parties’ briefs on the dismissal motion enable the Court to hold as a matter of law that the Plaintiffs grievances concerning Jeff Hammond were made pursuant to her employment duties at USM. The Plaintiffs grievances and claims filed with USM are not before the Court. Thus, the Court is unable to determine whether any grievance or complaint specifically addressed the Plaintiffs daily activities or operations. In addition, the Court is unfamiliar with the duties required of the Plaintiff in her former position as the Senior Associate Athletics Director for Internаl Affairs. The Court nonetheless finds, at least for Rule 12(b)(6) purposes, it plausible that the Plaintiff was acting outside the scope of her official employment when she voiced her various grievances regarding Hammond. Cf. Smith v. N. Bolivar Sch. Dist., No. 2:07cv51,
The Fifth Circuit has summarized the applicable law when the “public concern” inquiry moves beyond the Garcetti threshold:
Whether speech is of public concern is “determined by the content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-48,103 S.Ct. 1684 . “Because almost anything that occurs within a public agency could be of concern to the public, we do not focus on the inhеrent interest or importance of the matters discussed by the employee.” Terrell v. Univ. of Tex. Sys. Police,792 F.2d 1360 , 1362 (5th Cir.1986). Rather than looking at whether the public might or would have an interest in the matter, the court examines whether the speaker’s motivation was to speak primarily as a citizen or as an employee. Dodds v. Childers,933 F.2d 271 , 273 (5th Cir.1991). In cases of mixed speech or motives, “the speaker must have spoken predominantly ‘as a citizen’ to trigger First Amendment protection.” Id. at 274 (citation omitted). If the speech is not of public concern, we do not question the employer’s motivations for taking action against the employee. Id. at 273.
The apparent content of the Plaintiffs grievances (Jeff Hammond’s alleged insults, threats of violence, disrespect toward the Plaintiff, and other purported misconduct)
Other than the Plaintiffs labeling of herself “as a Whistleblower”,
The fact that the Plaintiff eventually filed charges with the Equal Employment Opportunity Commission (“EEOC”) fails to alter the nature of this personal employment dispute for First Amendment purposes. Several authorities have found speech to be private in nature notwithstanding the existence of an EEOC charge. See, e.g., Cutrer v. McMillan,
2. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Discrimination on the bаsis of sex violates the Equal Protection Clause irrespective of Title VII. See Southard v. Tex. Bd. of Criminal Justice,
Plaintiffs equal protection claims asserted under 42 U.S.C. § 1983 essentially “parallel” or duplicate her allegations of gender discrimination brought under Title VII. (Am. Compl. [38] at ¶ 47.) Plaintiff alleges that she “has been the victim of unlawful discrimination, based upon sex and based upon her filing charges of discrimination against USM and others representing USM.” (Am. Compl. [38] at ¶ 29.) More specifically, the Plaintiff asserts that she was effectively banned from USM in the months leading up to her termination, and that during this time she was not paid although similarly situated “males, who were not physically on the USM campus were paid.” (Am. Compl. [38] at ¶38.) Plaintiff also contends that the hiring of Jeff Hammond as Athletic Director was discriminatory sincе: (i) he was not qualified for the position; (ii) she “was the person with the most qualifications and knowledge regarding the Athletic Director position”; and (iii) no female was afforded the opportunity to apply for the job. (Am. Compl. [38] at ¶ 41.)
Dr. Saunders first argues that the Plaintiff is asserting a “class-of-one” equal protection claim that is proscribed by the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture,
Dr. Saunders next argues that the Plaintiff has failed to identify, with factual particularity, similarly situated individuals who were treated differently. To establish a prima facie case of gender discrimination, a plaintiff must allege, inter alia, that she was treated less favorably than a similarly situated employee outside her protected class. See Nasti v. CIBA Specialty Chems. Corp.,
Dr. Saunders further asserts that the Plaintiff has “failed to allege any specific conduct by which Saunders violated any rights secured by” the Equal Protection Clause. (Dr. Saunders’ Mem. of Law in Supp. of Mot. to Dismiss [63] at p. 9.) This argument is well taken with respect to the Plaintiffs unequal pay allegation, but not her failure to promote claim. A supervisory official “cannot be held liable under § 1983 for the actions of subordinates on any theory of vicarious liability.” Hampton v. Oktibbeha County Sheriff Dep’t,
Conversely, the Plaintiff has pled factual content concerning Dr. Saunders’ personal involvement in the alleged discriminatory hiring of Jeff Hammond. “Indeed, one of her complaints dealt with the discriminatory hiring of Mr. Hammond as Athletic Director and Interim Athletic Director. Dr. Saunders was determined to provide him the position even though he was not qualified for it.” (Am. Compl. [38] at ¶ 41.) “President Saunders named Jeff Hammond as interim athletics director .... I was the highest ranking administrator in the athletic department.” (March 13, 2012 EEOC Charge of Discrimination [87-2 at ECF p. 4].) These aver-ments, taken as true, adequately tie Dr. Saunders to the alleged violation of Plaintiffs equal protection rights based on the hiring of Jeff Hammond, i.e., the failure to promote the Plaintiff, for purposes of Rule 12(b)(6). Thus, the Court next considers “whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” Ramirez v. Martinez,
Plaintiff had a clearly established constitutional and statutory right to be free from gender discrimination in the workplace at the time of the alleged violations at issue in this case. See, e.g., Saucedo-Falls v. Kunkle,
In summary, the Plaintiffs claim against Dr. Saunders under § 1983 for violation of her right to equal protection based on unequal pay will be dismissed for failure to state a claim, whereas the Plaintiffs failure to promote claim (grounded on the same legal bases) will proceed past the pleading stage. Dr. Saunders may seek dismissal of this remaining cause of action at the summary judgment stage or at trial.
3. Due Process
The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law-” U.S. Const, amend. XIV, § 1. There can be no deprivation of substantive or procedural due process in the absence of a protected property right or liberty interest. See, e.g., Johnson v. Rodriguez,
The following allegations of the Amended Complaint arguably implicate substantive and procedural due process claims:
As a direct and proximate result of the foregoing tortious actions of Mr. Hammond, Plaintiff filed appropriate grievances and claims with USM. President Saunders and her staff refused to provide appropriate relief to Plaintiff. Indeed, President Saunders stated, words to the effect, that Plaintiff deserved or probably “needed” her mistreatment or words to that effect.
At one point, on or about December 2011, USM promised to provide funds and compensation and benefits to Plaintiff through June 2012. Thеn, they broke this promise, did not keep their word, and violated this contractual obligation. As a proximate result, Plaintiff has been harmed to this additional extent.
Additionally, the employee Handbook, as has been conceded by the President and Human Resource Director in previous litigational matters, affords the Plaintiff the contractual right to have her grievances and complaints and reporting of wrongdoing heard and addressed and investigated. These rights are contractual. They have been breached since they have not been afforded Plaintiff.
As a proximate result of Plaintiff reporting the foregoing misconduct, she was wrongfully dismissed and terminated and retaliated against. Plaintiff refused to engage in, participate, approve of, or ratify the foregoing illegal acts. Indeed, the enduring or permitting the occurrence of these acts became a condition of her employment. This practice is anathema to Mississippi’s jurisprudence. Plaintiff is a classic Whistleblower as defined by Mississippi case law and jurisprudence. Consequently, she asks for relief regarding this civil action. Since Plaintiff is a Whistleblower, pursuant to Mississippi case law, she is not an at will employee irrespective of the fact that she also had a property interest in her employment.
Furthermore, Plaintiff had, pursuant to her status as a Whistleblower and otherwise, a Due Process Right not to be subjected to arbitrary and capricious treatment. This treatment deprived her of her employment, the benefits her employment entitled her, as well as the procedural due process deprivations regarding the ignoring of her complaints and grievances provided at USM. Again, IHL ratified these violations.
It is undisputed that the applicable Handbooks entitlеd Plaintiff to a prompt, remedial resolution of her complaints and grievances regarding her mistreatment as described supra. That due process right was deprived by Defendants or ratified by Defendants.
(Am. Compl. [38] at ¶¶ 13, 23, 24, 26, 48.)
a. Procedural Due Process
Dr. Saunders chiefly argues that the Plaintiffs due process claims fail because she lacked a protected property interest in her continued employment at USM. At will employees have no constitutionally protected property interest in employment. See, e.g., Vance v. N. Panola Sch. Dist.,
Assuming arguendo the existence of a valid oral contract, the Amended Complaint is lacking in factual content showing that Dr. Saunders was a contracting party or that she breached the agreement. Plaintiffs conclusory allegations that “USM promised to provide funds” and that “they broke this promise”
McAm clearly allows an individual terminated for reporting illegal acts to bring an “action in tort” against his former employer notwithstanding the employment at will doctrine. McArn,
The Fifth Circuit has recognized that “Mississippi courts have held that employee manuals become part of the employment contract, creating contract rights to which employers may be held, such as Dr. Whiting’s right to the procedures outlined in the handbooks.” Whiting v. Univ. of S. Miss.,
b. Substantive Due Process
The substantive component of the Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins v. City of Harker Heights, Tex.,
Conduct sufficient to shock the conscience for substantive due process purposes has been described in several different ways. It has been described as conduct that “violates the decencies of civilized conduct”; conduct that is “so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency”; conduct that “interferes with rights implicit in the concept of ordered liberty”; and conduct that “is so egregious, so outrageous, that it may fairly bе said to shock the contemporary conscience.” Lewis,523 U.S. at 846-47 & n. 8,118 S.Ct. 1708 (citation and internal quotation marks omitted). Many cases that have applied the standard have involved the use of extreme force by police officers or other state actors. See Checki v. Webb, 785 F.2d*842 534, 535-36, 538 (5th Cir.1986) (state trooper intentionally used his vehicle to terrorize motorist and passenger); Shillingford v. Holmes,634 F.2d 263 , 264-65 (5th Cir.1981) (police officer intentionally struck tourist because he was photographing the police officer and fellow officers apprehending a boy on the street during a Mardi Gras parade), abrogated on other grounds by Valencia v. Wiggins,981 F.2d 1440 (5th Cir.1993); see also Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ.,229 F.3d 1069 , 1071, 1075-76 (11th Cir.2000) (student blinded in one eye when a coach intentionally hit him in the head with a metal weight); Rogers v. City of Little Rock, Ark.,152 F.3d 790 , 797 (8th Cir.1998) (rape of a woman at her house by a police officer after he stopped her for a traffic violation); Hemphill v. Schott,141 F.3d 412 , 418-19 (2d Cir.1998) (police officer provided assistance to a third party in shooting the plaintiff). As one court has recently summarized, “[t]he burden to show state conduct that shocks the conscience is extremely high, requiring stunning evidence of arbitrariness and caprice that extends beyond mere violations of state law, even violations resulting from bad faith to something more egregious and more extreme.” J.R. v. Gloria,593 F.3d 73 , 80 (1st Cir.2010) (citation and internal quotation marks omitted).
Setting aside the issue of the Plaintiffs property interest in her former employment at USM, the Court finds that the Plaintiff has failed to plead facts showing that Dr. Saunders engaged in any conduct sufficiently shocking to state a substantive due process claim. In essence, the Plaintiff contends that Dr. Saunders is individually liable for not addressing her grievances and for failing to afford her a safe workplace. (See Pl.’s Mem. in Supp. of Resp. to Mot. to Dismiss [88] at pp. 21-22.) These failure to act contentions sound in negligence or implicate state personnel decisions that are beyond thе purview of substantive due process. Further, the Supreme Court has held that “[^either the text nor the history of the Due Process Clause supports petitioner’s claim that the governmental employer’s duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.” Collins,
CONCLUSION
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that the Plaintiffs Motion to Strike [90] is granted in part and denied in part, as outlined above.
IT IS FURTHER ORDERED AND ADJUDGED that Dr. Saunders’ Motion to Dismiss [62] is granted in part and denied in part. The following of the Plaintiffs claims brought against Dr. Saunders in her individual capacity under 42 U.S.C. § 1983 are dismissed without prejudice pursuant to Rule 12(b)(6): (i) First Amendment retaliation claim; (ii) Equal Protection unequal pay claim; (iii) Procedural Due Process claim based on the existence of an alleged oral contract; (iv) Procedural Due Process claim based on McArn v. Allied Bruce-Terminix Co.; and (v) Substantivе Due Process claim. Plaintiffs Procedural Due Process claim based on USM’s employee handbook and Equal Protection failure to promote claim remain pending against Dr. Saunders.
OPINION AND ORDER
This matter is before the Court on the Defendant Dr. Martha Saunders’ Motion
Background
Plaintiff Diane Stark asserts numerous federal and state law claims relating to her former employment with the University of Southern Mississippi (“USM”) as the Senior Associate Athletics Director for Internal Affairs. Defendant Dr. Martha Saunders was the President of USM at certain times relevant to the Plaintiffs employment. Defendant Jeff Hammond was the Interim Athletics Director at certain times relevant to the Plaintiffs employment. The Defendant Board of Trustees of State Institutions of Higher Learning is charged with the management аnd control of Mississippi’s state institutions of higher learning, such as USM, under Mississippi law. See Miss. Const, art. 8, § 213-A; Miss. Code Ann. § 37-101-1. Further background information regarding this dispute is contained in the Court’s prior Orders. (See Doc. Nos. [80], [131], [135].)
Motion to Alter or Amend Judgment [137]
On March 25, 2014, the Court granted in part and denied in part Dr. Saunders’ Motion to Dismiss [62], which sought the dismissal of all claims asserted against her in her individual capacity under Title 42 U.S.C. § 1983. (See Mem. Op. & Order [131].) The following of the Plaintiffs claims were dismissed without prejudice: (i) First Amendment retaliation claim; (ii) Equal Protection unequal pay claim; (iii) Procedural Due Process claim based on the existence of an alleged oral contract; (iv) Procedural Due Process claim based on McArn v. Allied Bruce-Terminix Co.,
Dr. Saunders now seeks reconsideration of the Court’s refusal to dismiss Plaintiffs Equal Protection (failure to promote) and Procedural Due Process (employee handbook) claims pursuant to Federal Rule of Civil Procedure 59(e). The Fifth Circuit has provided that Rule 59(e) governs a motion seeking reconsideration of a ruling when the motion is filed within twenty-eight days of judgment. See Demahy v. Schwarz Pharma, Inc.,
“[A]mending a judgment is appropriate (1) where there has been an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of law or fact.” Demahy,
Dr. Saunders has failed to evidence any manifest error of law or fact in the Court’s Memorandum Opinion and Order [131]. Instead, Dr. Saunders’ reconsideration motion presents points of disagreement with the Court’s finding that certain of the Plaintiffs allegations pass scrutiny under Federal Rule of Civil Prоcedure 12(b)(6). Several of Dr. Saunders’ arguments “could, and should, have been made before the judgment issued”, and none require a departure from the Court’s ruling. United Nat'l Ins. Co. v. Mundell Terminal Servs., Inc.,
Motion to Dismiss as to State Law Claims [100]
This motion will be denied without prejudice. Dr. Saunders has recently moved for summary judgment on all of the Plaintiffs remaining claims asserted against her in her individual and official capacities. (See Doc. Nos. [166], [169].) In seeking summary judgment, Dr. Saunders incorporates by reference the grounds and arguments presented in her prior request for the dismissal of the Plaintiffs state law claims. The Court will consider the bases for dismissal presented in Dr. Saunders’ Motion to Dismiss as to State Law Claims [100] in ruling on summary judgment.
Motion to Strike [139]
This motion will be denied as moot. The motion is aimed at eight pages of deposition testimony attached as an exhibit to the Plaintiffs Reply [126] in support of her Motion to Strike Motion to Dismiss [112]. The Plaintiffs Motion to Strike Motion to Dismiss [112] was denied on April 3, 2014. (See Op. & Order [135].) To the extent the subject deposition testimony relates to Dr. Saunders’ Motion to Dismiss as to State Law Claims [100], that motion is being denied for the above-discussed reasons.
Conclusion
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Alter or Amend Judgment [137] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion to Dismiss as to State Law Claims [100] is denied without prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion to Strike [139] is denied as moot.
Notes
. (Am. Compl. [38] at ¶ 11.)
. (Am. Compl. [38] at ¶ 48.)
. "We do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Gentilello v. Rege,
.The Court may consider the Plaintiff’s EEOC Charges of Discrimination [87-2] without running afoul of Rule 12(b)(6) since they
. Hudson,
. (Am. Compl. [38] at ¶ 47.)
. In McAm, the Mississippi Supreme Court recognized “a narrow public policy exception to the” doctrine of employment at will in two circumstances: “(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; (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.”
. (Am. Compl. [38] at ¶ 23) (emphasis added).
. The Court recognizes that Rule 59(e) is not technically applicable since no “judgment” has been entered in this cause. However, this Court and others analyze reconsideration motions under Rule 59(e) when they are filed within the 28-day deadline. See, e.g., B & C Marine, LLC v. Cabiran, No. 12-1015,
. See, e.g., Burton v. Ark. Sec’y of State,
. (Am. Compl. [38] at ¶ 29.)
. (Doc. No. [87-2 at ECF p. 4].)
. See, e.g., Meyers v. Textron, Inc.,