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Firing Employee for Refusal to Get Out of Jury Duty Gives Rise to Wrongful Discharge Clam

People sometimes gripe about having to show up for jury duty.  But as an employer, in many states at least, firing an employee for refusing to lie to get out of his jury duty is not the way to go about handling it, as demonstrated by a recent case out of the Fifth Circuit.  Simmons v. Pacific Bells, L.L.C., No. 19-60001 (5th Cir. 9/27/19) (unpublished).

Simmons worked for Taco Bell in Mississippi as a manager along with the restaurant’s general manager, Henderson.  After receiving a summons for jury duty and notifying Henderson, Henderson responded that Simmons needed to “find a way to get out of jury duty.”  Instead, Simmons requested time off prior to having to report for jury duty, which he ultimately received after being scheduled initially in spite of his request.

Simmons proceeded to serve jury duty for the following week.  However, upon his return to work, he was fired for “tardiness.”  Significantly, Simmons had never been disciplined for tardiness before, he worked with other employees who were tardy more often but not disciplined or terminated, and much of the tardiness was the restaurant’s own doing, such as requiring him to report to a shift late to avoid overtime.  Prior to terminating him, Henderson also stated, “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 sued alleging he was terminated for refusing to lie to “get out” of jury duty.  The employer argued not only that Mississippi law did not permit employees to sue employers for terminating them because of jury duty, but also that the decisionmaker here had no knowledge of Simmons’s refusal to lie to avoid jury duty prior to deciding to fire him.  The district court agreed and dismissed Simmons’s lawsuit.

Simmons appealed, and the Court of Appeals reversed.

First, the Court held that there is in fact a private right of action under Mississippi law for employees to sue employers who terminate them for jury duty.  The State’s jury duty statute makes it “unlawful for any employer . . . to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service.”  Miss. Code Ann. § 13-5-35.  The Court found that in passing the law, Mississippi lawmakers declared an employee’s termination for participating in jury service legally impermissible, and such a termination represented an exception to the State’s at-will employment doctrine.

Next, the Court decided that there was enough evidence that a jury could find that Simmons was fired for refusing to lie.  Applying “cat’s-paw theory” (i.e., where “a supervisor’s recommendation to terminate an employee can serve as the proximate cause of an independent decisionmaker’s decision to do so”), the Court found that Henderson’s recommendation that Simmons be fired coupled with her knowledge that he refused to lie to get out of jury duty was the link to the employer’s liability.  Moreover, the Court noted that Simmons produced sufficient evidence that the reason for terminating him (tardiness) was pretextual.

As many employers may be aware, Maryland law contains its own jury duty statute that protects employees from job loss for responding to a jury summons.  Md. Code Ann., Cts. & Jud. Proc. § 8-501(a).  Employers would be well-served to create workplace policies accounting for this protection and ensuring that supervisors likewise are aware of the law’s provisions.

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