‘Taco Bout’ the Wrong Reason to Terminate An Employee: Employee's Wrongful Discharge Claim For Attending Jury Duty Survives

Simmons v. Pacific Bells, LLC - Fifth Circuit Court of Appeals

Facts:  Max Simmons ("Simmons") worked at a Taco Bell restaurant beginning in February of 2017.  (The Taco Bell restaurant location was operated by Pacific Bells, LLC "Pacific Bells".)  In July of 2017, Simmons received a jury summons that required he appear for jury duty on July 31, 2017.  After receiving the summons, Simmons apparently told Carolyn Henderson "Henderson", the regional general manager of the Taco Bell location where Simmons worked, about the summons.  Henderson allegedly told Simmons to "find a way to get out of jury duty."  Simmons proceeded to request time off for jury duty as well as additional time to visit family.  That request for time off was made two weeks in advance.

Notwithstanding the request for time off, Henderson scheduled Simmons to work.  Simmons texted Henderson on July 23rd with a reminder about the jury duty and a request to not be scheduled.  A few days later, Simmons texted another district manager and asked for time off for jury duty.  Simmons also called an employee hotline to voice his concerns.  The district manager told Simmons he did not have to work past Friday that week and Simmons did not work that weekend or when he was scheduled for jury duty.

Simmons was subsequently selected to serve on a jury and was in service from August 1st through August 8th.  Upon returning to work, Simmons was terminated on the grounds that he was fired due to his tardiness.  (This was apparently the first time Simmons was reprimanded for being late.  Although Simmons was apparently tardy on occasion, he claimed his tardiness was a result of Pacific Bell's business practices which required Simmons to transport products from other Taco Bell locations on his was to work, which sometimes resulted in him arriving late or leaving early.)  Of note, before Simmons was terminated, Henderson sent an e-mail to a colleague stating "I have several routes I can go with his termination.  The ones I want to focus on will be excessive tardiness or changing time in [the time-keeping] system."

Simmons proceeded to file suit against Pacific Bells on the grounds that his termination violated Mississippi law and public policy.  More specifically, Simmons claimed his termination for tardiness was pretextual and he was really terminated for refusing to lie to avoid jury duty and for his subsequent jury service.  The district court granted summary judgment for Pacific Bells on the grounds that Mississippi law did not provide a private cause of action for employees terminated because of jury duty.  Simmons proceeded to appeal to the Fifth Circuit Court of Appeals.

Holding:  While the Fifth Circuit Court of Appeals noted the standard of review when reviewing a granting of summary judgment, the Court quickly delved into whether Mississippi law provides a private cause of action for a worker to sue their employer for termination in violation of Section 13-5-35 of Mississippi law.

Applicability of  Section 13-5-35

In this case, the Court recognized that the Mississippi Supreme Court had not ruled on the matter before.  Therefore, the Court looked at other courts for guidance as well as how the Mississippi Supreme Court had ruled on analogous cases previously.

Notably, the Mississippi Supreme Court had issued a ruling in 2016 which considered whether a Mississippi statute that barred employers from preventing an employee from transporting or storing a firearm in a locked vehicle provided aggrieved employees with a wrongful discharge tort action.  (In that case, the Mississippi Supreme Court held that the statute did in fact provide this cause of action.)  Relying upon this similar case, the Court of Appeals held that Simmons could bring suit against Pacific Bells for wrongful termination, in violation of Section 13-5-35.

Genuine Issue of Material Fact

Although Mississippi is an at will employment state, the Court noted that there is a "narrow" public policy exception that permits an employee to to sue for wrongful termination if the employee is discharged for "refus[ing] to participate in an illegal act" or for "reporting illegal acts of his employer."  For an employee to prevail upon this cause of action, causation must be shown between the alleged misconduct and the decision process that resulted in the discharge.  As the party moving for summary judgment, Pacific Bells could not establish that Simmons's termination was decided before his jury summons.  The Court was unswayed by Pacific Bells' argument that Henderson recommended Simmons's termination before knowing about his jury summons as a jury would not be required to believe the testimony of an interested witness, in this case Henderson.  On the other hand, Simmons had produced evidence that his termination for tardiness might have been pretextual (as he was tardy less often than other coworkers, yet those coworkers did not suffer adverse employment actions.)  As well, Simmons had never been warned about his tardiness, let alone that some of the tardiness was a result of running "errands" for Pacific Bells.  As a result, the Court held that the supervisor's recommendation to terminate Simmons can serve as the proximate cause of an independent decision maker's decision to do so. 

Judgment:  The Fifth Circuit Court of Appeals reversed summary judgment in favor of the employer and held that Section 13-5-35 provided the employee with a private cause of action for wrongful discharge after evidence established that the employer might have discharged the employee for attending jury duty.

The Takeaway:  As always, I caution readers that the Court in this case is not saying that the employee's case against his employer is a winner...nor that the employer actually violated the law.  Instead, as this appeal came about as a result of a granting of summary judgment, the Court's analysis turned on whether there was a genuine issue of material fact presented by Simmons, such that the case would need to be heard (and ruled upon) by a jury.  Based upon the evidence in the record, a jury could reasonably find that Pacific Bells terminated Simmons because he attended jury duty (and used Simmons's tardiness as a pretext for the termination.)

A few things jump out here, as the Court noted:  1) Simmons had not been warned about his tardiness previously, yet that suddenly became an issue around the time he went to jury duty; and 2) while other coworkers were tardy more often than Simmons, he is the one that was reprimanded and terminated.  Employers should use this case as a reminder that if you are going to enforce rules (such as being at work on time, not using cellular devices while on the clock, not abusing rest/lunch breaks), make sure to do it uniformly.

Majority Opinion Judge:  Per curiam

Date:  September 27, 2019

Opinion:  http://www.ca5.uscourts.gov/opinions/unpub/19/19-60001.0.pdf