Fifth Circuit Says Not So Fast to Fast Food Chain

By Martin Regimbal

As many readers know, Mississippi adheres to the at-will employment doctrine, which provides that an employer may terminate an employee for a good reason, a bad reason, or no reason at all, as long as the reason is not illegal.  Until recently, Mississippi has recognized only three exceptions to this doctrine (i.e., an employer may not terminate an employee for refusing to participate in a criminally illegal act; an employer may not terminate an employee for reporting a criminally illegal act of his employer; and an employer may not terminate an employee for legally storing a gun in her/his car on company property in a publicly-accessible parking area).  Recently, the United States Court of Appeals for the Fifth Circuit determined that Mississippi would also recognize a fourth exception to the at-will employment doctrine – an employer may not terminate an employee for serving jury duty.  Let’s take a closer look at the Fifth Circuit’s decision.

The Facts

Max Simmons began working for a Taco Bell restaurant operated by Pacific Bells, L.L.C. in February 2017.  Simmons was hired as a “bench” general manager, a position intended to train an employee to become a restaurant general manager (“RGM”).  Carolyn Henderson, the RGM of the Taco Bell in Jackson, Mississippi, where Simmons worked, supervised his training and performance.  

In mid-July 2017, Simmons received a jury summons requiring him to appear on July 31, and he alleged that he told Henderson about the summons soon after receiving it.  According to Simmons, Henderson instructed him to “find a way to get out of jury duty.”  Simmons instead requested time off for jury duty, as well as two additional days so that he could visit family.  He made these requests two weeks in advance.

Despite this request, Henderson scheduled Simmons to work.  In response, Simmons texted Henderson on July 23:  “I requested the 29 and 30 of July! … I have jury duty on the 31 of July. Please do not Schedule [sic] to work.”  Four days later, Simmons texted Annette Banger, the equivalent of the local district manager for Pacific Bells:  “I asked to be off this coming WEEKEND … I have JURY DUTY AT 800 am Monday morning.  I cannot close Sunday. I need your help with this matter plz [sic].”  Simmons also called the employee hotline the next day to voice his concerns.  Banger later told Simmons that he did not have to work past Friday, and Simmons did not work that weekend or while he was scheduled for jury duty on July 31.

Simmons was selected for jury service and served from August 1 through August 8, 2017.  When he returned to work, Henderson and Banger told Simmons that he was fired due to his tardiness.  This was the first time Simmons was reprimanded for being late. Simmons was sometimes tardy, even by several hours, but he claimed that his tardiness often resulted from Pacific Bells’s business practices.  For example, the company required him to transport products from other Taco Bell locations on his way to work, and he was encouraged to arrive late or leave early to reduce overtime costs when business was slow.  Other employees were tardy more frequently than Simmons, but they were not terminated.  

Simmons filed suit against Pacific Bells, alleging that his termination violated Mississippi law and public policy.  Specifically, Simmons alleged that his termination due to tardiness was pretextual and that he was really fired for refusing to lie to avoid jury duty and for his subsequent jury service.  Pacific Bells asked the federal trial court to dismiss the case, arguing among other things that Mississippi law does not permit a private cause of action for employees terminated because of jury service.  The federal trial court accepted Pacific Bells’ arguments and dismissed Simmons’s claims.  Simmons appealed.

The Decision

The Fifth Circuit began by evaluating whether Mississippi law allowed Simmons to sue Pacific Bells for terminating him for jury service.  Under Mississippi law, employers are prohibited from “persuad[ing] or attempt[ing] to persuade any juror to avoid jury service” or “subject[ing] an employee to adverse employment action as a result of jury service.”  The Fifth Circuit also noted that Mississippi law provides a “narrow public policy exception to the employment at will doctrine … [for] an employee who refuses to participate in an illegal act.”  According to the Mississippi Supreme Court, “[w]hile Mississippi is an at-will employment state, that doctrine is not absolute…. [T]he doctrine must yield to express legislative action and/or prohibitions found in federal or state law.”  However, the Fifth Circuit acknowledged that the Mississippi Supreme Court had never answered the question of whether terminating an employee for jury service fell within the exceptions to the employment at will doctrine.  In such situations, the Fifth Circuit is required to make a guess as to how the Mississippi Supreme Court would rule if faced with the issue. 

The Fifth Circuit determined that if the Mississippi Supreme Court was faced with the issue, it would hold that termination for attending jury service would fall within the narrow exceptions to the employment at-will doctrine, such that an employee could sue her/his employer for wrongful termination.  In reaching this conclusion, the Fifth Circuit relied on a prior decision from the Mississippi Supreme Court that concerned a Mississippi law stating that employers 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.”  In that matter, the Mississippi Supreme Court determined that the law created a statutory exception to the employment-at-will doctrine and, therefore, that an employee could sue her/his employer if terminated in violation of the law.  In doing so, the Mississippi Supreme Court reiterated that the employment at will doctrine permitted employees to “be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.”  The Mississippi Supreme Court reasoned that, by enacting a statutory restriction on employers, the Mississippi legislature “independently declared…that terminating an employee for having a firearm inside his locked vehicle is legally impermissible.”  

Relying on the Mississippi Supreme Court’s rationale with respect to that exception to the employment at will doctrine, the Fifth Circuit stated that it saw no compelling reason to distinguish it from Simmons’ termination.  As the Mississippi legislature independently declared that terminating an employee for jury service is legally impermissible, the Fifth Circuit held that the employment at will doctrine must yield to the express legislative prohibitions.  Accordingly, the Fifth Circuit held that Simmons was entitled to a jury trial on his wrongful termination claim against Pacific Bell.

Takeaway       

Although the Mississippi Supreme Court had not directly addressed the issue raised by Simmons’ claim, the Fifth Circuit’s rationale for extending the narrow exceptions to the employment at will doctrine to Simmons’ claim found solid legal support in an analogous decision from the Mississippi Supreme Court.  For this reason, Mississippi employers should heed this decision and not take any action that could be deemed “persuad[ing] or attempt[ing] to persuade any juror to avoid jury service” or “subject[ing] an employee to adverse employment action as a result of jury service.”