Holly v. Ups Supply Chain Solutions, Inc., 16-5337

BRUCE HOLLY, Plaintiff-Appellant, v. UPS SUPPLY CHAIN SOLUTIONS, INC.,AND JEREMY FLETCHER, Defendants-Appellees.

No. 16-5337

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

March 2, 2017

NOT RECOMMENDED FOR PUBLICATION

File Name: 17a0135n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

BEFORE: MERRITT, BATCHELDER, and ROGERS, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. In this wrongful termination suit, Plaintiff-Appellant Bruce Holly alleged he was illegally fired because of his lawful possession of a concealed firearm on his employer's—Defendant-Appellee UPS Supply Chain Solutions' ("UPS SCS")—property. Finding no genuine dispute as to any material fact, the district court granted UPS SCS and Defendant-Appellee Jeremy Fletcher, UPS SCS's Human Resources Sueprvisor, summary judgment. Holly appealed, and we affirm.

I. BACKGROUND

The material facts in this case are not in dispute. UPS SCS hired Holly in October 2010 to work as a part-time supervisor in the Healthcare Division at its Outer Loop facility in Kentucky. After about six months with the company, Holly transitioned to a full-time Operations Supervisor role, which is the position he held at the time his employment ended in May 2013. On April 1, 2013, Holly experienced car trouble on his way to work at UPS SCS. After he arrived, he asked his manager, Ron Nolan, for permission to leave work to take his vehicle to a repair shop. Nolan agreed and sent a fellow member of management with Holly to drive him back to work from the shop.

Holly testified that as he was leaving work, he remembered that he had stored a handgun in the center console of his car. Holly had obtained his concealed carry license in 2012, and, from at least that time forward, he carried a handgun in his vehicle every day. Because Holly did not want to leave his handgun in the car while it was at the shop, he asked a subordinate employee, Kenneth Moore (who was working at the time), if he could store the gun in Moore's vehicle while his was being repaired. Moore agreed, and, in the UPS SCS parking lot, Holly removed the gun from his car and placed it in Moore's.

While Holly was at the repair shop, Moore began to worry about his temporary possession of Holly's gun. Moore felt so uncomfortable that he reported Holly's request to a supervisor, who referred the matter to Nolan. Nolan discussed the incident with Holly upon his return from the shop, reminding him of UPS SCS's policy, which reads, "We also prohibit the possession and/or use of weapons by any employee on UPS property." Holly was not disciplined, however, and at the end of the day he retrieved his gun from Moore's vehicle.

UPS SCS security and management later became aware of the incident through an unrelated investigation. UPS SCS initially suspended Holly on May 10, 2013, and, upon the conclusion of an internal investigation, terminated his employment on May 20, 2013. At that time, UPS SCS cited two reasons for Holly's termination: Holly's poor performance review in 2011 and the fact that Holly had asked a subordinate (Moore) for a personal favor on companytime.¹ Holly filed suit in Jefferson Circuit Court of the Commonwealth of Kentucky in September 2013, alleging that UPS SCS and its Human Resources Supervisor, Fletcher, violated Kentucky Revised Statutes §§ 527.020 and 237.106 by firing him and that his termination constituted wrongful discharge in violation of the public policy evidenced by those statutes.² Fletcher and UPS SCS removed the case to the United States District Court for the Western District of Kentucky on the basis of diversity jurisdiction, 28 U.S.C. §§ 1332 and 1441. Upon completion of discovery, both defendants sought summary judgment. Because it found that Holly could not establish the essential elements of a wrongful termination claim under Kentucky law, the district court granted defendants-appellees' motion.

II. ANALYSIS

A. Standard of Review

We review de novo a district court's granting of summary judgment. Tysinger v. Police Dep't of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). Summary judgment is appropriate if there is no genuine dispute as to any material fact, that is, when "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Fed. R. Civ. P. 56(a), (c). Where, as here, we have diversity jurisdiction under 28 U.S.C. § 1332, the substantive law governing the action is that of the forum state, see Erie R.R. v. Tompkins, 304 U.S. 64, 79 (1938), but it is the federal standard that governs the motion for summary judgment, see McBride v. Acuity, 510 F. App'x 451, 452 (6th Cir. 2013) (additional citations omitted).

B. Wrongful Termination under Kentucky Law

We begin our analysis with the well-established principle under Kentucky law, that "[o]rdinarily an employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible." Grzyb v. Evans, 700 S.W.2d 730, 731 (Ky. 1983) (quoting Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1984)). Kentucky's de facto at-will employment rule may be abrogated by contract or statute. Id. at 400-02; see also Jackson v. JB Hunt Transport, Inc., 384 S.W.3d 177, 183 (Ky. Ct. App. 2012) ("Generally, in the absence of a specific contractual provision to the contrary, employment in Kentucky is terminable at-will . . . .") (citations omitted) (internal quotation marks omitted). Kentucky common law also recognizes a narrow cause of action for wrongful termination when the discharge was "contrary to a fundamental and well-defined public policy as evidenced . . . by a constitutional or statutory provision." Grzyb, 700 S.W.2d at 401. "The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact." Id. A discharge falling within the public policy exception to Kentucky's terminable-at-will rule is actionable only:

(1) Where there are explicit legislative statements prohibiting the discharge, (2) where the alleged reason for the discharge . . . was the employee's failure or refusal to violate a law in the course of employment, or (3) when the reason for the discharge was the employee's exercise of a right conferred by well-established legislative enactment.

Mitchell v. Univ. of Ky., 366 S.W.3d 895, 898 (Ky. 2012) (citations omitted) (internal quotation marks omitted).

C. Application of Kentucky Law to Holly's Wrongful Termination Claim

Because Kentucky is an at-will employment jurisdiction, Holly must first demonstrate that he falls within at least one of the three exceptions that Kentucky law recognizes to thedefault at-will employment relationship. The record does not support—nor do the parties contend—that there was a contractual exception to Kentucky's at-will employment rule. Holly therefore rests his claim for wrongful termination on two statutory provisions and the general public policy exception.

Holly first argues that Kentucky Revised Statutes § 527.020 provides him with "the legal right and evidence[s] the public policy affording Holly the right to keep a handgun in his vehicle while on his employer's, UPS's property." This statute, while found in the Kentucky penal code, creates a civil cause of action. Mitchell, 366 S.W.3d at 902. The statute provides in relevant part:

No person, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.110 and 237.115. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction.

Ky. Rev. St. § 527.020(4) (emphasis added); see also Ky. Rev. Stat. § 527.020(8) (including similar language and creating a civil cause of action). Thus, the act protected by subsection (4) is possessing a weapon or ammunition in one's vehicle "in compliance with the provisions of KRS 237.110 and 237.115."³ Under § 237.110, a private employer "may not prohibit employees or other persons holding a concealed deadly weapons license from carrying concealed deadly weapons, or ammunition, or both in vehicles owned by the employee." Ky. Rev. Stat. § 237.110(17) (emphasis added).

The plain words of the statute make clear that Holly's actions do not fall within the protection of the statute. While it is undisputed that Holly possessed a gun in his vehicle on theUPS SCS premises—which is gun possession protected under Kentucky law—it is likewise undisputed that he removed the gun from his vehicle and placed it in another employee's vehicle—which is not gun possession "in compliance with the provisions of KRS 237.110," Ky. Rev. Stat. § 527.020(4); see § 237.110(17), and is not protected under the statute. Significantly, as the district court correctly pointed out, § 237.110(17) expressly contemplates disciplinary action for an employee's carrying a concealed weapon on the employer's premises. Ky. Rev. St. § 237.110(17) ("Carrying of a concealed weapon, or ammunition, or both in a location specified in this subsection by a license holder shall not be a criminal act but may subject the person to denial from the premises or removal from the premises, and, if an employee of an employer, disciplinary measures by the employer.").

Subsection (8) of § 527.020 provides no additional support for Holly's argument. That section unambiguously defines when a firearm or other deadly weapon is deemed concealed, which is when "it is located in any enclosed container, compartment, or storage space installed as original equipment in a motor vehicle by its manufacturer . . . ." Ky. Rev. St. §...