Cherry v. Huntington Ingalls Inc.
| Decision Date | 02 December 2019 |
| Docket Number | CAUSE NO. 1:18CV88-LG-RHW |
| Parties | JEREMY CHERRY and LOCAL 733 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS PLAINTIFFS v. HUNTINGTON INGALLS INCORPORATED DEFENDANT |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT are the [42] Motion for Partial Summary Judgment filed by Plaintiff Jeremy Cherry, and the [44] Motion for Summary Judgment filed by Defendant Huntington Ingalls Inc. ("Ingalls"). Both Motions are fully briefed. The parties dispute application of a Mississippi statute limiting an employer's ability to fire an employee for transporting or storing a firearm in his or her automobile on company premises. After due consideration of the submissions and the relevant law, the Court concludes that Jeremy Cherry was wrongfully discharged. Accordingly, his Motion for Partial Summary Judgment is granted. Ingalls' Motion is granted in part and denied in part.
In April 2016, Plaintiff Jeremy Cherry was employed by Ingalls as a cableman in the electrical department of its Pasacagoula shipyard, and a member of the Local 733 of the International Brotherhood of Electrical Workers. Cherry was on his way to work, driving on the access road leading to the main gate of the construction area when a security officer pulled him over for speeding. A subsequent search revealed a pistol and ammunition clip in the glove box. Cherry was terminated for violation of company policy prohibiting firearms and other weapons on company property. He alleges his termination violated his written employment agreement and Mississippi Code § 45-9-55, which generally forbids an employer from establishing, maintaining, or enforcing "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." Miss. Code Ann. § 45-9-55(1).1 Cherry's claims are for beach of employmentcontract, breach of the duty of good faith and fair dealing, and negligent infliction of emotional distress. He seeks compensatory and punitive damages.
Local 733 alleges that Ingalls refused to "submit Cherry's termination through the grievance procedure set forth in the collective bargaining agreement" because "an arbitrator would have to interpret state law - an eventuality prohibited under the [Collective Bargaining Agreement]." (Compl. 3, 4, ECF No. 1.) Local 733 alleges the refusal was a breach of the CBA because the statute in question had already been interpreted by the Mississippi Supreme Court. Local 733 seeks an order requiring Ingalls to abide by the CBA and to submit Cherry's termination to arbitration.
In his motion for partial summary judgment, Cherry argues that Ingalls' parking lot security measures did not qualify for the exception to § 45-9-55 so that Ingalls could enforce its weapons policy. Specifically, Ingalls did not maintain a security station or restrict or limit access to the access road or parking lot through the use of a gate or other barrier. Cherry contends that as a consequence, his termination violated Mississippi Code § 45-9-55, and he is entitled to a judgment on the issue of liability.
Ingalls moves for summary judgment on all claims. It argues first that it is entitled to judgment as a matter of law on Local 733's claim of breach of the CBA, because the Union has waived its right to require Ingalls to arbitrate the dispute. Ingalls also argues that the claim is not arbitrable because the arbitrator wouldhave to interpret the statute to determine if it gives an employee the right to possess a firearm on company property outside a parking lot.
Second, Ingalls contends it is entitled to judgment on Cherry's wrongful discharge claim because Mississippi Code § 45-9-55 does not apply to the facts of this case. Ingalls argues that the statute applies to locked vehicles in secured parking lots and does not extend to an employee's unlocked vehicle on an access road. Thus, Cherry could be discharged for possession of a firearm discovered in his unlocked car on an access road leading to a parking lot. Even if the facts of this case did fall within the statute, Ingalls contends that its parking lots have sufficient security to qualify for the exception, allowing it to forbid possession of firearms in employee's vehicles parked on the premises.
Following from its argument that it did not violate § 45-9-55 in discharging Cherry, Ingalls contends it is entitled to summary judgment on the remaining claims of breach of good faith and fair dealing, negligent infliction of emotional distress, and punitive damages. Ingalls also moves, in the alternative, for summary judgment regarding Cherry's claims for back pay during the period he was unable to work due to injuries.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine dispute of material fact means that 'evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5thCir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the evidence presented by the nonmovant "'is merely colorable, or is not significantly probative,' summary judgment is appropriate." Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 249). In deciding whether summary judgment is appropriate, the Court views the evidence and inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
Mississippi Code § 45-9-55 was enacted in 2006 and has been applied only a handful of times. In 2015 the Fifth Circuit certified to the Mississippi Supreme Court the question of whether the statute created an exception to the employment at will doctrine.2 The Mississippi Supreme Court responded that the statute did indeed create an exception. Swindol v. Aurora Flight Scis. Corp. (Swindol II), 194 So. 3d 847, 854-55 (Miss. 2016). The Fifth Circuit concluded that "the court was holding that the relevant cause of action for discharging someone in violation of this statute is the same as that already recognized for wrongful discharges under McArn [v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993)], namely, a tort action with the same categories of relief being available." Swindol I, 832 F.3d at 494. TheFifth Circuit subsequently remanded cases in which district courts had held that an employer was immune from suit under § 45-9-55 and under Mississippi's at-will employment doctrine.
Ingalls does not contend that it is immune from Cherry's wrongful discharge claim. The relevancy of the Swindol opinions to this case therefore seems limited to general background. In any event, Cherry's wrongful discharge claim is based on Ingalls' alleged breach of the CBA by terminating him without cause, which has always been a valid basis under Mississippi law. See Cmty. Care Ctr. of Aberdeen v. Barrentine, 160 So. 3d 216, 217 (Miss. 2015) ().
An early post-Swindol I case is Parker v. Leaf River Cellulose, LLC, in which the plaintiff was terminated after a firearm was discovered in his locked vehicle in "a parking area which has no gate, fence, or security station, and which 'is surrounded on all sides by roadways and open fields.'" No. 2:14CV9-KS-MTP, 2017 WL 2197130, at * 1 (S.D. Miss. May 18, 2017). At the parking area entrances, the employer had placed signs stating that the parking area was for use of employees and visitors to the business, and all weapons were prohibited. Id. The court found that the defendant had not shown that its parking area was restricted as described in § 45-9-55(2), and therefore "it was not entitled to prevent the plaintiff from storing his firearm in his locked vehicle under Mississippi law." Id. at *4.
In Smith v. Huntington Ingalls Incorporated, the court found questions of fact concerning whether the same Ingalls parking areas at issue in this case are restricted as described in § 45-9-55(2). 363 F. Supp. 3d 711 (S.D. Miss. 2019). The plaintiff had two "speed loaders" in plain view inside his locked vehicle parked in one of Ingalls' parking lots at the shipyard in Pascagoula. Id. at 712. He contended his subsequent termination was in violation of § 45-9-55. Ingalls argued that its no firearms policy was "enforceable because it 'restricts public access with no-trespassing signs, security patrols, and closed circuit cameras monitored in a central security station.'" Id. at 718.
The court reviewed the evidence of the parking restrictions and found that Ingalls had not shown it was entitled to summary judgment. The court questioned whether Ingalls' policy infringes on the rights of its employees under state law. "Ingalls' policy as applied arguably has the effect of precluding its employees from having firearms in their vehicles during [their] commutes, which in some cases may be quite long." Id. at 719 (citations omitted). Given that there was no screening of vehicles entering the parking lots but might be screening of employees as they actually entered the workplace, "the effectiveness of Ingalls' parking lot policy in achieving its stated goal of improving security seems questionable." Id. Summary judgment was denied because "at a minimum there are material fact questions for resolution at trial regarding whether Ingalls' policy, as applied by Ingalls in this case, resulted in Smith's wrongful termination."
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