Labor & Employment Law Daily Wrap Up, PROCEDURE—5th Cir.: Fired employee’s untimely First Amendment claim related back to timely whistleblower claim, (Jan 23, 2025)

By Marjorie Johnson, J.D.

However, his breach-of-contract claim did not relate back since, among other things, his original complaint made no allegations concerning the type of employment relationship.

The Fifth Circuit reinstated whistleblower and First Amendment retaliation claims brought by a former general manager for a public utilities authority who alleged he was fired in retaliation for reporting inefficiency and incompetence to state officials and the media, but the appeals court declined to revive his untimely breach-of-contract claim. Based on the Mississippi Supreme Court’s response to a certified question clarifying that the statute of limitations and notice provisions of the Mississippi Tort Claims Act (MTCA) did not apply to the employee’s Mississippi Whistleblower Protection Act (MWPA) claim, the Fifth Circuit reversed dismissal of his timely MTCA claim as well as his otherwise untimely First Amendment claim, finding that it related back to the original complaint since it was supported by the same facts (Johnson v. Miller, No. 23-60199 (5th Cir. Jan. 22, 2025)).

Lawsuit alleges whistleblower claim. The employee served as general manager of Clarksdale Public Utilities Authority (CPU) since June 2017. After he was terminated in September 2021, he filed a lawsuit asserting a claim of retaliation under the MWPA. His original complaint alleged that after he was hired, he observed “multiple acts of abuse or authority and/or substantial abuse, misuse, destruction, waste or loss of public funds or public resources.” He reported that information to the mayor and city commissioners, who authorized him to send the information to the state auditor and the attorney general. After he advised CPU of his actions, its board called an emergency meeting and suspended him, ostensibly because he and other staff had been involved in wiretapping telephone lines in the CPU offices. He was terminated a few months later.

Later adds First Amendment and contract claims. In January 2022, he filed an amended complaint adding a Section 1983 claim of First Amendment retaliation. He also added allegations that he reported his observations of CPU’s misconduct to the media, and that he was fired in retaliation for these additional reports. In April 2022, he filed a second amended complaint in which he added a breach-of-contract claim against CPU.

Dismissed on procedural grounds. The district court granted the defendants’ motion for judgment on the pleadings as to all claims. First, the court held that the MTCA’s notice requirements and one-year statute of limitations applied to his MWPA claim, and therefore the claim was both time-barred and failed to meet the notice requirements. The court also held that his First Amendment retaliation and breach-of-contract claims were untimely and did not relate back to the original complaint.

Certified question answered. On appeal, the Fifth Circuit certified the following question to the Supreme Court of Mississippi: “When a plaintiff brings a claim against the government and its employees for tortious conduct under the MWPA, is that claim subject to the procedural requirements of the MTCA?” The state’s high court answered that it was not, explaining that because the MWPA is a remedial statute separate from the MTCA, a MWPA claim is not subject to the MTCA’s statute of limitations and notice requirements. And because the MWPA did not contain its own statute of limitations, the three-year period prescribed for personal injury actions applied.

Whistleblower Act claim timely. Based on the Mississippi Supreme Court’s guidance, and because the employee filed his original complaint three days shy of the three-year limitations period, the Fifth Circuit concluded that his MWPA claim was timely. And because the claim was also not barred by MCTA’s notice requirements, dismissal of the claim was reversed.

First Amendment claim relates back. The Fifth Circuit also held that, although his First Amendment retaliation claim was not filed within the three-year statute of limitations, it could still proceed since it related back to his timely MWPA claim. As an initial matter, the appeals court rejected his contention that the amended complaint’s additional information was “not so new or different that it does not relate back.” Though his original complaint alleged that he reported his concerns to city officials in early July 2018, the amended complaint alleged that he separately contacted members of the media to report his concerns in July 2018. Thus, if his alleged media contacts were necessary to stating a plausible claim for First Amendment retaliation, that claim would not relate back to his original complaint.

However, the Fifth Circuit found that the media contacts were not necessary to state a First Amendment retaliation claim, and the “same facts” alleged in his original complaint supported the Section 1983 claim. First, he alleged he engaged in speech that involved a matter of public concern since he pleaded that he reported official misconduct to various city officials. He also sufficiently alleged that his speech outweighed the defendants’ interest in the efficient provision of public services since none of his allegations indicated his speech “would generate controversy and disruption to the extent of impeding CPU’s functioning.” Finally, because his original complaint alleged that he was fired for providing information to the state auditor and attorney general, he plausibly alleged that his speech precipitated his termination.

Breach of contract claim doesn’t relate back. However, the district court did not err in concluding that his breach-of-contract claim did not relate back because his original complaint “[did] not allege any facts that [the employee] and CPU had a valid and binding contract that CPU breached,” and the second amended complaint “alleges new, distinct facts, including that his employment offer letter was a valid contract and CPU breached by terminating him with failure to establish good cause.”

Though he argued that his original complaint contained sufficient facts to provide notice of a breach-of-contract claim because a federal district court has held that, under Mississippi law, an “employment relationship is by nature a contractual relationship,” he omitted a key portion of that district court decision which specified that “[a]n at-will employment relationship is by a nature a contractual relationship,” explained the Fifth Circuit. And in his original complaint, he only alleged that he “was hired by the defendants on June 19, 2017, to be the general manager” and was suspended and then later terminated. Significantly, he did not make any allegations concerning what type of employment relationship they had or claim that any contract was breached. “Nothing about the contents of his contract was present in his original complaint, nor did he plead any facts about which provisions of said contract were violated,” concluded the Fifth Circuit.

The case is No. 23-60199.

Judge: Willett, D.

Attorneys: Joel Frank Dillard (Law Offices of Joel Frank Dillard) for Mark Johnson. LaToya Cheree Merritt (Phelps Dunbar) for George Miller, Sr.

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