Swindol v. Aurora Flight Scis. Corp.

194 So.3d 847

Robert SWINDOL

v.AURORA FLIGHT SCIENCES CORPORATION.

No. 2015–FC–01317–SCT.

Supreme Court of Mississippi.

March 24, 2016.

David O. Butts, Jr., attorney for appellant.

Stephen William, Robinson Nicholas, Delvecchio Sanfilippo, R. Bradley Best, Oxford, attorneys for appellee.

EN BANC.

LAMAR, Justice, for the Court:

¶ 1. This case presents a certified question from the Fifth Circuit Court of Appeals. Robert Swindol sued his employer, Aurora Flight Sciences Corporation, in federal court for wrongful discharge and defamation. Swindol alleged that Aurora had terminated him for having a firearm inside his locked vehicle in the company parking lot. Aurora filed a motion to dismiss, and the district court dismissed Swindol's wrongful-discharge claim with prejudice,¹ stating that it “[could not] say that the Mississippi Supreme Court would recognize a third exception to the doctrine of at-will employment,” as proposed by Swindol. As such, the district court found that Swindol had failed to state a claim for wrongful discharge. Swindol appealed, and the Fifth Circuit has now certified the following question to this Court:

Whether in Mississippi an employer may be liable for a wrongful discharge of an employee for storing a firearm in a locked vehicle on company property in a manner that is consistent with [Mississippi Code] Section 45–9–55.

Swindol v. Aurora Flight Sciences Corp., 805 F.3d 516, 523 (5th Cir.2015). The Fifth Circuit also concluded that it “would benefit from [this Court's] analysis of whether Section 45–9–55(5) bars” Swindol's suit. Id. at 522. We find that an employer may be liable and that Section 45–9–55(5) does not shield Aurora from liability under the facts of this case.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Fifth Circuit summarized the facts as follows:

Swindol worked for Aurora Flight Sciences Corporation in Mississippi. He parked his car in Aurora's parking lot with a firearm locked inside. Aurora's managers learned about the firearm and fired Swindol later the same day for violating a company policy forbidding firearms on company property. Aurora then convened a plant-wide meeting during which its human resources manager told employees that Swindol was a security risk and instructed them to call the police if they saw him near the facility.

Swindol sued Aurora in United States District Court in Mississippi. He asserted there was diversity jurisdiction under 28 U.S.C. § 1332. He brought state-law claims for wrongful discharge and defamation. Aurora moved to dismiss Swindol's complaint under Rule 12(b)(6). The district court granted the motion, dismissing Swindol's wrongful discharge claim with prejudice and his defamation claim without prejudice. Swindol appealed.

Id. at 520 (footnote omitted).

¶ 3. The Fifth Circuit began its discussion by noting Mississippi Code Section 45–9–55(1), which provides:

(1) Except as otherwise provided in subsection (2) of this section, a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.

Miss.Code Ann. § 45–9–55(1) (Rev.2015). The cross-referenced subsection (2) provides a different rule for certain secured parking lots, but neither party claims that rule applies here. Swindol, 805 F.3d at 521. It also is “undisputed that Aurora had a firearms policy that is inconsistent with [Section 45–9–55 ].” Id.

¶ 4. Swindol argued before the Fifth Circuit that it “should interpret Section 45–9–55 to create a ‘separate and additional public policy exception to the at-will doctrine’ because doing so would fortify Mississippi's public policy supporting the right to bear arms.” Id. But the Fifth Circuit ultimately declined to do so, noting that it had “discovered no Mississippi case law addressing the effect of Section 45–9–55.”² Id. The Court went on to say that

It is undisputed that Aurora had a firearms policy that is inconsistent with the statute. Those facts still leave as questions whether the firing violated the statute and whether it can be remedied in this action despite the employment-at-will doctrine. We hesitate to intrude into such a seemingly well-settled area of state law. As the Mississippi Supreme Court has held, employment at will means employers may fire employees “for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.” McArn v. Allied Bruce–Terminix Co., Inc., 626 So.2d 603, 606 (Miss.1993) (citation and quotations omitted). The two exceptions to the Mississippi employment-at-will doctrine identified by the McArn court over 20 years ago remain the only two recognized so far. Neither McArn exception applies here. See id. at 607.

Though the Mississippi Supreme Court has not expanded the exceptions after McArn, the court has been clear that the legislature has the authority to create new exceptions. See, e.g., Kelly v. Miss. Valley Gas Co., 397 So.2d 874, 876 (Miss.1981). In Kelly, the court held that the employment-at-will doctrine barred the plaintiff's claims for retaliatory discharge based on his employer's firing him for exercising his statutory right to file a workmen's compensation claim. Id. The Kelly court based its decision largely on the lack of a statutory provision expressly making it a crime for an employer to discharge an employee for filing such a claim. Id. The Mississippi statute here, though, goes beyond just giving rights to employees. It is express that an employer may not enforce a policy prohibiting employees from having weapons in their locked vehicles. See § [45–9–55]. The issue as we see it is whether that prohibition is sufficient to create an exception to the Mississippi employment-at-will doctrine.

Id. at 521–22. The Fifth Circuit decided also that it would “benefit from [this Court's] analysis of whether Section 45–9–55(5) bars this suit.” Id. at 522. Section 45–9–55(5) provides:

(5) A public or private employer shall not be liable in a civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession or use of a firearm covered by this section.

Miss.Code Ann. § 45–9–55(5) (Rev.2015).

¶ 5. So, the Fifth Circuit concluded,

Section 45–9–55 clearly expresses a public policy prohibiting employers from barring employees from possessing firearms in the manner the plaintiff claims he did. Yet there are no state-law authorities to guide us in deciding how this statute affects the employment-at-will doctrine. Mississippi state courts have not identified any exceptions to the doctrine beyond those in McArn. That consistency raises compelling comity interests that stay our hand from adding an exception in federal court even were we to decide an exception had been statutorily created. The Mississippi Supreme Court is the only court that can definitively decide whether the well-settled McArn doctrine has been affected by Section 45–9–55.

Swindol, 805 F.3d at 522. The certified question quoted above followed.

ANALYSIS

Employment–At–Will Jurisprudence in Mississippi

¶ 6. Mississippi has followed the common-law rule of at-will employment for more than 150 years.

Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 874–75 (Miss.1981). See also Butler v. Smith and Tharpe, 35 Miss. 457 (1858). In short, either party may terminate the employment at will, and the parties “may have a good reason, a wrong reason, or no reason for terminating the employment contract.” Kelly, 397 So.2d at 874–75. Stated more broadly, “ ‘absent an employment contract expressly providing to the contrary, an employee may be discharged at the employer's will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.’ ” McArn v. Allied Bruce–Terminix Co., Inc., 626 So.2d 603, 606 (Miss.1993) (quoting Shaw v. Burchfield, 481 So.2d 247 (Miss.1985) ).

¶ 7. In Kelly v. Mississippi Valley Gas Co., Plaintiff J.C. Kelly

[urged the Court] to adopt a public policy exception to the common law rule that an employment contract at will may be terminated by either party with or without cause or justification, and hold an employer liable to an employee in a common law tort action when an employer has discharged an employee for filing a workmen's compensation claim.

Kelly, 397 So.2d at 874. But this Court declined to carve out a “public policy exception” to the employment-at-will rule, noting

While the harshness of the terminable at will rule is subject to exception in light of express legislative action, the absence of explicit statutory provision of a civil remedy in the Mississippi workmen's compensation statute argues against recognizing a cause of action for retaliatory discharge.

Id. at 875 (quoting Green v. Amerada–Hess Corp., 612 F.2d 212, 214 (5th Cir.1980) ) (citations omitted). This Court said that, while Kelly's arguments had “considerable appeal,” they were “clearly for the Legislature to assess, not the judiciary.” Kelly, 397 So.2d at 876. This Court noted the lack of a retaliatory-discharge provision in Mississippi's Workmen's Compensation Law, as well as the lack of a provision making it a crime for an employer to discharge an employee for filing a claim. Id. As such, this Court concluded that it would be “engraft[ing] on the law an exception different from that expressed by the Legislature,” which was not its function. Id.

¶ 8. The United States District Court for the Northern District of Mississippi addressed Mississippi's employment-at-will jurisprudence a few years later in Laws v. Aetna Finance Company, ITT, 667 F.Supp. 342 (N.D.Miss.1987). The plaintiff there alleged that his employer fired him after he refused to participate in illegal loan “packing.” Id. at 343–44. The district court recognized that Mississippi “clearly” was an employment-at-will state. Id. at 344. But the court also opined that “the ...