Sheard v. Novo Nordisk, Inc.

595 F.Supp.3d 604

Kenneth SHEARD, Plaintiff

v.NOVO NORDISK, INC., Defendant

No. 3:20-cv-152-BJB

United States District Court, W.D. Kentucky, Louisville Division.

Signed March 31, 2022

Brandon O. Edwards, Louisville, KY, for Plaintiff.

J. Andrew Inman, Littler Mendelson, PC, Lexington, KY, for Defendant.

OPINION & ORDER

Benjamin Beaton, District Judge

May a Kentucky employer fire someone for driving to work with a gun in the car? What if the employee didn't actually have a firearm, but the employer acts on the mistaken belief that he does? And does a taser count as a firearm?

These are some of the questions raised in this unusual wrongful-termination lawsuit. Novo Nordisk fired Kenneth Sheard after he told his supervisor that he "[was] packing" during a conversation about increasingly dangerous streets. Novo cited a company policy that barred employees from keeping guns in their cars. But it turns out Sheard was "packing" a taser, not a traditional gun. Now he claims that his termination violated Kentucky laws and public policy protecting citizens’ rights to keep arms in their cars.

Novo moved to dismiss the suit because it reads the laws Sheard relies on to not protect any right to keep and bear tasers. Although Kentucky courts haven't yet confronted this question, several others have. And Novo appears to have the better reading of the statutory text and caselaw: a taser isn't a "firearm" under Kentucky law because it doesn't use gunpowder to discharge a projectile.

But Kentucky law indisputably imposes civil liability on employers who prevent or attempt to prevent employees from possessing firearms in their cars. See KRS § 527.020. And that is indisputably what Novo—though factually mistaken—tried to do, costing Sheard his job in the process. Does a mistaken attempt create the same liability for employers that an actual violation of gun-ownership rights would? The briefs don't address this critical question. So the Court denies the motion to dismiss and asks the parties to consider this issue at summary judgment.

I.

Novo Nordisk, a multinational pharmaceutical company, hired Sheard as a sales representative in April 2017. First Am. Compl. (DN 5) ¶ 7. In February 2018, his supervisor expressed concern for his physical safety and cautioned him to "be careful with the homeless in the area." ¶¶ 8–9. "Don't worry," Sheard responded, "I am packing." ¶ 11. Sheard's supervisor told Sheard that his possession of a gun in his car violated company policy. ¶¶ 13–14. Shortly thereafter, without any investigation or other discipline, Novo fired Sheard for violating its policy prohibiting employees from keeping guns in their cars. ¶¶ 14–18.

So Sheard sued Novo, complaining that his termination violated Kentucky law protecting the rights of employees and citizens to possess firearms. Sheard's amended complaint lodges three claims against Novo—two statutory and one that rests on an alleged violation of public policy. "No person who is the owner, lessee, or occupant of real property shall prohibit any person," according to KRS § 237.106(1), "from possessing a firearm." And KRS § 527.020(8) states that "[n]o person ... shall prohibit a person from keeping a loaded or unloaded firearm ... or other deadly weapon in a vehicle." Sheard also claims his termination "constitute[d] a violation of public policy," a "breach of the covenant of good faith and fair dealing," and a violation of his "rights under the Kentucky and United States Constitutions," all of which give him "a cause of action for wrongful discharge ... contrary to a fundamental and well-defined public policy as evidenced by existing law." FAC ¶¶ 29–33 (quoting Boykins v. Housing Authority , 842 S.W.2d 527, 529 (Ky. 1992)).

Novo filed a motion to dismiss the complaint, whose well-pled factual allegations the Court accepts as true. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). If the non-conclusory facts make out a plausible claim to relief, dismissal is inappropriate. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

II.

Sheard's first claim, asserting rights under KRS § 237.106, fails for a very simple reason. The law is geographically limited to cases in which someone prohibits a person from "possessing a firearm ... in a vehicle on the property " of the employer. KRS § 237.106 (emphasis added).¹ Section 237.106 "protects an employee who keeps a firearm in his vehicle on the employer's property or who removes or handles the firearm for one of [several] reasons listed." Holly v. UPS Supply Chain Sols. Inc. , 163 F. Supp. 3d 465, 471 (W.D. Ky. 2016). And "[i]t is ‘only under these limited circumstances’ that the employer is subject to liability for taking disciplinary action against the employee." Id. (quoting Korb v. Voith Indus. Servs. , No. 3:12-cv-222, 2012 WL 7062365, at *2 (W.D. Ky. Nov. 28, 2012) ).

Sheard's complaint does not allege that Novo fired him because he had a firearm on his employer's property. In fact, his complaint says nothing about the location of his taser-containing car. And without that essential factual allegation connecting Novo's firing of Sheard with the presence of Sheard's vehicle on the employer's property, the claim fails as a matter of law.

III.

Sheard's second count alleges Novo violated KRS § 527.020(8), which bars any "person or organization" from "prohibit[ing] a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle" so long as that possession is in accordance with Kentucky law.

The law, though contained in the criminal code, goes on to expose those who attempt to prohibit guns in cars to potential civil liability. "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." Id. (emphasis added). Kentucky's Supreme Court has given this language its plain meaning: an organization violates the statute when it prohibits an employee from possessing a firearm in his vehicle.

Mitchell v. Univ. of Ky. , 366 S.W.3d 895, 899, 902 (Ky. 2012) (though the provision is "primarily a criminal statute" that is "codified in the penal code," it "specifically contemplate[s] and authorize[s] a civil cause of action "). Unlike KRS § 237.106, this provision is not geographically limited to cars on an employer's property. And it protects not only firearms, but also "other deadly weapon[s]." KRS § 527.020(8).

A. Firearms. Does a taser count as a "firearm" or "other deadly weapon"? The United States Supreme Court has recognized that the tasers are "arms" that fall within the Second Amendment's scope. See Caetano v. Massachusetts , 577 U.S. 411, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016). But the question facing this Court, which the Kentucky Supreme Court hasn't addressed, is textually and analytically distinct: whether a taser is a fire arm or other deadly weapon under Kentucky law. In the absence of Kentucky caselaw on point, the Erie doctrine instructs this Court to look to the interpretive methods utilized by the state supreme court in interpreting state statutory language. Faber v. Ciox Health, LLC , 944 F.3d 593, 602 n.7 (6th Cir. 2019). The task is to "ascertain from all available data, including the decisional law of the state's lower courts, what the state's highest court would decide if faced with the issue." Ziegler v. IBP Hog Market, Inc. , 249 F.3d 509, 517 (6th Cir. 2001).

As to the meaning of "firearm," the Kentucky Supreme Court would start, and could perhaps end, with its statutory definition. The General Assembly has defined "firearm" for purposes of Chapter 527 of the Kentucky penal code as "any weapon which will expel a projectile by the action of an explosive." KRS § 527.010(4) ; see also KRS § 237.060(2) (same definition). Indeed, a three-justice concurrence to a recent Kentucky Supreme Court decision expressly addressed "[t]he definition of ‘firearm’ in KRS 527.010(4)." Commonwealth v. Jones , 283 S.W.3d 665, 671 (Ky. 2009) (affirming a felon-in-possession conviction because a rifle's operability wasn't an element of the offense). Justice Venters's concurrence explained that § 527.010(4) distinguishes between "weapons ... which expel a projectile by the action of an explosive i.e. gunpowder" and those "such as air rifles ... that expel a projectile by some other means." Id.

This straightforward definition and distinction would probably suffice, standing alone, to refute Sheard's position that a taser is a firearm. Tasers, as the term is used colloquially and in the caselaw, do not use an "explosive" to expel a projectile. Rather, they "use[ ] compressed nitrogen to propel a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the [taser] by insulated wires—toward the target," ultimately delivering an electric shock. Cockrell v. City of Cincinnati , 468 F. App'x 491, 492 (6th Cir. 2012) (quoting Bryan v. MacPherson , 630 F.3d 805, 824 (9th Cir. 2010) ). Neither party's filings describe the taser at issue with any particularity, so it is possible that the facts of this case are ultimately incompatible with the description found in these precedents. But in general a taser's mechanics rely on compressed gas, not exploding gunpowder. That means it wouldn't be considered a firearm under KRS § 237.106 or § 527.020.

To the extent any doubt remains, other textual sources corroborate this understanding. Elsewhere the code expressly distinguishes between firearms and tasers. KRS § 16.220 tells state agencies how to use proceeds from the sale of confiscated firearms. Law enforcement agencies may use those proceeds to buy specified types of equipment, including "(b) Firearms or ammunition," and "(c) Electronic control devises, electronic control weapons, or electro-muscular disruption technology." KRS § 16.220. "[E]lectronic...