McArn v. Allied Bruce-Terminix Co., Inc., BRUCE-TERMINIX

• Decision Date: 19 August 1993
• Docket Number: No. 90-CA-939,BRUCE-TERMINIX,90-CA-939
• Citation: 626 So. 2d 603
• Parties: 127 Lab.Cas. P 57,573, 8 Indiv.Empl.Rts.Cas. (BNA) 1314 James Garland McARN v. ALLIEDCOMPANY, INC.
• Court: Mississippi Supreme Court

Page 603

626 So.2d 603

127 Lab.Cas. P 57,573, 8 Indiv.Empl.Rts.Cas.

(BNA) 1314

James Garland McARN v.ALLIED BRUCE-TERMINIX COMPANY, INC.

No. 90-CA-939.

Supreme Court of Mississippi.

Aug. 19, 1993.

Rehearing Denied Nov. 24, 1993.

Jim Waide, Waide Law Office, Tupelo, for appellant.

Taylor B. Smith and Timothy M. Threadgill, Mitchell McNutt Threadgill Smith & Sams, Columbus, and Guy W. Mitchell, III, Mitchell McNutt Threadgill Smith & Sams, Tupelo, for appellee.

Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the Court:

This case calls upon this Court to revisit our long-standing common law rule that the employment contract at will may be terminated by either party with or without justification.

James McArn, an employee at will, has sued his former employer, Allied Bruce-Terminix Company, Inc., for wrongful discharge.He asks this Court to create a narrow public policy exception to our long-standing employment at will rule.

At trial, when McArn rested, Terminix moved for a directed verdict, which was granted by the trial court.On appeal, McArn assigns two errors:

I.The circuit court erred in holding the employment at will doctrine permits an employee to be discharged for refusing to participate in criminal activity; and,

II.The circuit court erred in directing a verdict for Terminix on McArn's claim that he had been defamed before the Mississippi Employment Security Commission.

On October 17, 1988, McArn signed an employment contract with Terminix, and the terms of this contract allowed either the employer or the employee to terminate employment at any time, with or without cause.

In March, 1989, David Howell became the branch manager of the Columbus, Mississippi, office for Allied-Bruce Terminix.McArn was assigned to show Howell around the Columbus facilities.At trial Howell testified that McArn's personal appearance did not meet the requirements of corporate policy and that his equipment was dirty.

Howell also said that McArn was resentful to him for making remarks about McArn's personal appearance and the cleanliness of his truck and equipment.During Howell's first week as branch manager, he gave McArn a written citation for his personal appearance, attitude, tardiness, and job performance.Howell testified that McArn refused to sign this citation.

In April, 1989, Howell claims that he gave McArn another written reprimand for his insubordinate attitude, and that he reported McArn's attitude to David Poole, the regional manager, but that Poole asked Howell not to give up on McArn.

McArn claims to have been given only one disciplinary action report.He stated that this report was given to him by Howell five days prior to his being fired, and this report stated that he had a bad attitude.McArn testified that he never came to work unshaven or sloppily dressed.He stated that Howell had only reprimanded him for being late on one occasion.

McArn testified that as early as May of 1989, he had called John Headley, the Quality Control man for Allied Terminix, and complained about working conditions.McArn testified that he told Headley that Howell was making him lie and cheat the customers about their termite treatment and would not let McArn properly do his job.

The next working day, which was the following Monday, Howell called McArn into his office and castigated him about making a phone call to Headley and told him, "we don't need your kind around here no way.You're fired buddy."

As might be expected this is not Howell's version of the events.Howell agrees that he did call McArn into his office to discuss the call to Headley, but he did not intend to fire him until McArn called him a "no good son of a bitch," and that was the reason that he fired McArn.

McArn testified that he was constantly required by Howell to falsify his chemical reports that were to go to the State Agricultural Department.He mentioned numerous jobs where he was instructed to apply inadequate chemical treatment by Howell.On some of these jobs, such as the New Home Building Supply job, he said Howell made him tell the customer the job was complete when McArn and Howell both knew the job was not completed.

Howell testified that he never asked McArn to falsify any information on his paperwork that was to be submitted to the state.He also said that he never told McArn to falsify the chemical reports, but he did tell McArn to make do with the amount of chemicals that they had.Howell denied telling McArn to lie to the New Home Building customer about the job having been completed.

Bobby Joe Jones, the manager of New Home Building Store, stated that about one week after McArn and Howell treated his store, McArn told him that no chemicals were applied and that he should contact Mr. Haskins, with the State of Mississippi, for an inspection of the work.Jones said that Howell had lied to him about putting jacks under the foundation on part of his building because that part of the foundation was sitting directly on the ground.Jones also stated that Howell had told him that the job had been completed.

A few days after McArn told Jones that no chemicals were used on this job, Howell and another Terminix employee returned and asked Jones if they could re-treat the premises.Jones told them that they would have to check with the state first.

Jim Haskins, a Department of Agriculture Supervisor, testified that he examined the termite work done at the New Home Building Store, and that New Home had not been properly treated.He also testified that McArn told him of other jobs that were not properly treated.Investigations were made into two other jobs, which McArn identified as inadequately treated, and the investigations revealed that these treatments were in fact inadequate.

John Headley, the Terminix Quality Control man, testified that while McArn did keep his truck very dirty, he was a good employee with an impressive work record.He remembered that McArn and other employees complained that they were overworked, but he did not remember McArn complaining about Howell making him lie to customers.However, in a prior deposition, Headley testified that he recalled McArn telling him that Howell required him to lie to customers about the thoroughness of their work.

David Poole, the regional manager, testified that he was told by Howell that McArn had a bad attitude.Poole stated that he learned that Howell had lied to him about the New Home job.Prior to McArn's termination, Poole was not aware of any claim by McArn that he was being required to apply insufficient chemicals to termite treatments.

When Terminix moved for its directed verdict at the end of McArn's case, McArn asked the trial court to carve out a public policy exception to the employment at will rule in this state, but the trial judge did not feel that the facts of this case warranted carving out such an exception.

I.

DID THE CIRCUIT COURT ERR IN HOLDING THAT THE EMPLOYMENT AT

WILL DOCTRINE PERMITS AN EMPLOYEE TO BE DISCHARGED

FOR REFUSING TO PARTICIPATE IN CRIMINAL ACTIVITY?

McArn's position is that he was discharged because he reported conduct of Terminix which caused members of the public to be deceived.McArn contends that he was reporting conduct which amounted to a crime under Miss.Code Ann. Secs. 97-19-39and69-23-19 (1972)(felony to receive money under false pretense and misdemeanor to violate state pest control regulations).

In Kelly v. Mississippi Valley Gas Co., 397 So.2d 874(Miss.1981), Kelly claimed that he was discharged for refusing to dismiss a claim with the Mississippi Workmen's Compensation Commission based upon a work related injury.In denying Kelly actual or punitive damages, this Court said "that Mississippi followed the common law rule that a contract for employment for an indefinite period may be terminated at the will of either party."Id. at 874.Also, an employer or an employee may have a good reason, a wrong reason, or no reason at all for termination.Id. at 875.We further stated that:

We therefore decline to adopt a public policy exception to the common law rule that an employment contract at will may be terminated by either party with or without justification, and decline to create a common law tort action against an employer by an employee who has been discharged for filing a workmen's compensation claim.

Id. at 877.

We revisited this issue in Shaw v. Burchfield, 481 So.2d 247(Miss.1985).In Shaw, we were presented with a written insurance agency manager's contract which provided for termination on ten (10) days written notice.Id. at 248.The discharged employee contested the Mississippi employment at will doctrine, but we held that the rights and powers of these parties were governed by privately made law furnished by the parties themselves.Id. at 254.Shaw, like this case, dealt with a separate written contract.It is interesting to note that in all three of the contracts in the Shaw case there was a clause which allowed for immediate termination for the commission of any act of dishonesty or fraud.Also of note is that in Shaw there was no claim that the company sought to force the employee to engage in illegal or fraudulent conduct.

However, we did note in Shaw that "[u]nder fire is the notion that, absent an employment contract expressly providing to the contrary, an employee may be discharged at the employer's will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible."Id. at 253-54;SeeMississippi Employment Security Commission v. Philadelphia Municipal Separate School District, 437 So.2d 388, 397(Miss.1983).

In Perry v. Sears, Roebuck & Co., 508 So.2d 1086(Miss.1987), we were faced with an employee who brought an action against his former employer for breach of contract and wrongful termination.We noted that Mississippi has followed the employment at will doctrine since 1858.Id. at 1088.We also said that...