Jury Duty

The rule of at-will employment is firmly ingrained in Mississippi law. The rule means that, unless an employee has an employment contract, she can be fired for a good reason, a bad reason, or no reason at all (as long as the firing does not violate federal anti-discrimination laws).

Over the years, the Mississippi Supreme Court has adopted a few exceptions to this rule. You can read about them here: /2017/11/13/exceptions-mississippi-at-will-employment-s-craig-panter/

On September 27, 2019, the United States Court of Appeals for the Fifth Circuit announced another (albeit narrow) exception in Simmons v. Pacific Bells, LLC.

Max Simmons began working for a Taco Bell restaurant operated by Pacific Bells in February 2017. In mid-July 2017, Simmons received a jury summons requiring him to appear on July 31.

Simmons says that he told his supervisor, 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 kept reminding Henderson of his jury summons and kept requesting time off.

Simmons showed up for jury duty was selected. He served from August 1 through August 8, 2017. When he returned to work, Henderson told Simmons that he was fired due to his tardiness.

Discovery revealed an email written by Henderson 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 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 moved for summary judgment, arguing that Mississippi law does not permit a private cause of action for employees terminated because of jury service.

The district court agreed with Pacific Bells and dismissed the case.

In its opinion, the Fifth Circuit noted that Miss. Code Ann. § 13-5-35 prohibits employers from persuading or attempting to persuade any juror to avoid jury service or subjecting an employee to an adverse employment action as a result of jury service.

Mississippi law also provides a “narrow public policy exception to the employment at will doctrine . . . [for] an employee who refuses to participate in an illegal act.” McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603, 607 (Miss. 1993).

The first issue, then, was whether Mississippi law provided Simmons with a private cause for action for termination in violation of Section 13-5-35.

Finding no Mississippi state court opinions on the subject, the Fifth Circuit was required to make a judgment call as to what a state court would say on the issue. (This process is referred to as an “ Erie -guess”.)

Looking at other Mississippi Supreme Court decisions involving at-will employment, the Fifth Circuit concluded that Simmons could indeed sue Pacific Bells for wrongful termination.

The Court then turned to the question of whether Simmons had sufficient evidence to create a jury issue as to whether he was fired for the events surrounding his jury service.

The Fifth Circuit concluded “the timing of Simmons’s termination, combined with the arguably pretextual rationale for his firing, could lead a reasonable jury to conclude that he was fired as a result of his refusal to lie to avoid jury service.”

Simmons “only needs to demonstrate that Henderson’s recommendation caused his termination and that her recommendation was motivated by his refusal to lie.”

Thus, the case was remanded to district court for a jury trial.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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