Labor & Employment Law Daily Jury service statute supports fired employee’s public policy discharge claim
Wednesday, October 2, 2019

Jury service statute supports fired employee’s public policy discharge claim

By Joy P. Waltemath, J.D.

The Taco Bell manager claimed that he was told to lie to get out of jury duty, and when he served instead, he was fired.

Finding an implied right of action in Mississippi’s jury service statute and that alleged retaliation in violation of that statute could be an illegal act supporting a public policy exception to employment at will, the Fifth Circuit revived an employee’s claim he was fired for refusing to lie to get out of jury duty. In an unpublished opinion, the court determined that the Taco Bell manager in training had sufficient evidence he was fired, although supposedly for tardiness, immediately after his return from jury duty, and the individual who recommended his termination (and was present during it) was the same individual who allegedly told him to lie to get out of jury service (Simmons v. Pacific Bells, L.L.C., September 27, 2019, per curiam, unpublished).

Jury service statute. Mississippi Code Ann. §13-5-35 prohibits employers from either persuading or attempting to persuade “any juror to avoid jury service” or “subject[ing] an employee to adverse employment action as a result of jury service.” Because the Mississippi Supreme Court had not yet ruled on the issue, the Fifth Circuit first evaluated whether Mississippi tort law would allow the fired Taco Bell manager-trainee to sue his employer for terminating him in violation of state law. It then had to decide whether he had raised factual issues as to whether the reason he was fired was because he refused to try to avoid service. The Fifth Circuit answered yes to both, reversing and remanding.

Right of action? Relying on the Mississippi Supreme Court’s decision in Swindol v. Aurora Flight Sciences Corp. involving a Mississippi guns in parking lots statute to support a public policy exception to the employment-at-will rule, the appeals court approvingly cited caselaw that permits 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.”

Swindol was not distinguishable here, reasoned the court, noting the language of the jury service law made it unlawful for employers to try to persuade jurors to avoid jury service; “to intimidate or to threaten any juror or otherwise subject an employee to adverse employment action as a result of jury service.” The statute also made violations “an interference with the administration of justice and a contempt of court and punishable as such.”

Although the employer argued that because this statute contains an express remedy, the statute should not be read to support tort liability, the court suggested that the explicit potential for criminal punishment actually favored finding a cause of action. Accordingly, it held that the employee was permitted to sue his employer for wrongfully terminating him in violation of the statute.

Retaliatory discharge. While Mississippi is an at-will-employment state, there is a “narrow” public-policy exception applicable here that permits an employee to sue for wrongful termination if the employee is discharged for refusing to participate in an illegal act. The employee claimed that when he received a jury summons in mid-July for July 31, he told the restaurant’s general manager, who told him to find a way to get out of it. He requested time off instead. She scheduled him to work anyway. He texted her back that he had jury duty and to not schedule him to work. Four days later, he texted the local district manager, telling her he had jury duty; she later told him he did not have to work while he was summoned for jury duty. He also called the employee hotline. After arriving as summoned, the employee was selected and served on a jury from August 1-8. When he returned, he was fired for “tardiness.”

Was termination planned before jury service? The company, which had never before reprimanded the employee for tardiness, argued against retaliation, claiming that the local district manager was unaware of the employee’s alleged refusal to lie and that the general manager had recommended he be fired before knowing about his jury summons. But the Fifth Circuit pointed to the employer’s lack of any contemporaneous evidence that it made the termination decision before his jury summons.

It also pointed out that the general manager was “an interested witness because she has a direct and private interest in the matter; she allegedly instructed [the employee] to commit an illegal activity (lying to avoid jury service) and recommended his termination because of his failure to do so. Plus, under a cat’s-paw theory, a supervisor’s recommendation to terminate an employee can serve as the proximate cause of an independent decisionmaker’s decision to do so.

Employee’s pretext evidence. The Fifth Circuit instead listed the employee’s circumstantial evidence of pretext, which it found a reasonable jury could credit. First, he was tardy less often than coworkers who were not terminated or otherwise disciplined. Second, he was never once warned about his tardiness. Third, he had evidence that some of his tardiness resulted from his employer’s business practices (he had to transport products from other Taco Bell locations on his way to work). Fourth, he was fired immediately after jury service. Fifth, the restaurant’s general manager who allegedly told the employee to lie “recommended his termination and was present for it.” And that same manager stated in an email that she had “several different routes I can go with his termination. I want to focus on [his] excessive tardiness.”

Counting the timing of the employee’s termination as well as his circumstantial pretext evidence, the Fifth Circuit concluded a reasonable jury could find that he was fired as a result of his refusal to lie to avoid jury service. To avoid summary judgment, the employee only needed evidence that could demonstrate the restaurant manager’s recommendation caused his termination and that her recommendation was motivated by his refusal to lie—which was a question for the jury to decide.

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