                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2002-CA-00529-SCT

KATHERINE L. BUCHANAN

v.

AMERISTAR CASINO VICKSBURG, INC.


DATE OF JUDGMENT:                                 3/5/2002
TRIAL JUDGE:                                      HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED:                        WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           DAVID M. SESSUMS
ATTORNEYS FOR APPELLEE:                           HERBERT C. EHRHARDT
                                                  BRANDON MICHAEL CORDELL
NATURE OF THE CASE:                               CIVIL - TORTS-OTHER THAN PERSONAL
                                                  INJURY & PROPERTY DAMAGE
DISPOSITION:                                      AFFIRMED - 08/07/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC

        GRAVES, JUSTICE, FOR THE COURT:


¶1.     This appeal arises from a judgment of the Circuit Court of Warren County granting summary

judgment in favor of Ameristar Casino Vicksburg, Inc., against Katherine L. Buchanan. Buchanan appeals

and submits the following issues for review:

        I. Whether the trial court erred in finding that Buchanan failed to show that a contractual
        relationship of employer and employee existed between Ameristar Casino and her.


        II. Whether the trial court erred in ruling that the only two exceptions to the employment
        at will doctrine in Mississippi are: (1) where the termination of the employee is due to
         refusal to do an illegal act, or (2) where the termination of the employee is due to his
         exposure to an illegal act by the employer or the employer’s agent.


         III. Whether the trial court erred in declining to rule that the discharge of an employee
         solely in retaliation for the employee filing a workers’ compensation claim violates the
         public policy of the State of Mississippi and constitutes an independent tort.


         IV. Whether the court erred in granting summary judgment.



                                                   FACTS

¶2.      While employed with Ameristar, Buchanan was injured on the job and received workers’

compensation benefits. Buchanan received a letter dated January 12, 1998, informing her that she had been

terminated from her employment at Ameristar effective December 31, 1997. Buchanan filed a complaint

on November 19, 1999, in the Circuit Court of Warren County alleging wrongful discharge. Ameristar filed

a motion for summary judgment, and the circuit court granted the motion and later denied reconsideration

of its ruling.

                                               DISCUSSION


¶3.      Because all four issues are interrelated, we will discuss them simultaneously. Although Buchanan

presents four issues for this Court’s review, essentially, her argument is that the trial court erred in granting

summary judgment because there was a genuine issue of material fact and she was improperly terminated

for filing a workers’ compensation claim. We apply the following standard of review:


         This Court has a well-established standard of review of a trial court's grant of summary
         judgment: Our appellate standard for reviewing the grant or denial of summary judgment
         is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of
         Civil Procedure. This Court employs a de novo standard of review of a lower court's grant


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        or denial of summary judgment and examines all the evidentiary matters before it--
        admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The
        evidence must be viewed in the light most favorable to the party against whom the motion
        has been made. If, in this view, there is no genuine issue of material fact and, the moving
        party is entitled to judgment as a matter of law, summary judgment should forthwith be
        entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to
        require denial of a motion for summary judgment obviously are present where one party
        swears to one version of the matter in issue and another says the opposite. In addition, the
        burden of demonstrating that no genuine issue of fact exists is on the moving party. That
        is, the non-movant should be given the benefit of the doubt.

Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss. 2001).

¶4.     Mississippi is an employment at-will state. The general rule of employment at will is that a contract

for employment for an indefinite period may be terminated at the will of either party, whether the termination

is for any reason or no reason at all. See McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 606

(Miss. 1993). This Court addressed the issue of whether an employee has a cause of action for termination

based upon retaliation for filing a workers’ compensation claim in Kelly v. Mississippi Valley Gas Co.,

397 So. 2d 874 (Miss. 1981). In Kelly, this Court declined to adopt a public policy exception or to

recognize a common law tort action against an employer by an employee who may have been discharged

for filing a workers’ compensation claim. Id. at 877.

¶5.     However, in McArn two exceptions to the general, employment at-will rule were carved out by

this Court:

        (1) an employee who refuses to participate in an illegal act...shall not be barred by the
        common law rule of employment at will from bringing an action in tort for damages against
        his employer; (2) an employee who is discharged for reporting illegal acts of his employer
        to the employer or anyone else is not barred by the employment at will doctrine from
        bringing action in tort for damages against his employer.

626 So. 2d. at 607.




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¶6.     Buchanan was an at-will employee with Ameristar prior to her termination. As evidenced by the

record, she signed a “Certification and Agreement” form acknowledging that her employment was for an

indefinite period. Buchanan also signed the “Acknowledgment” form in Ameristar’s employee handbook

which stated that it did not create a contract or guarantee continued employment. The “Employment Status

Policy,” included in the Ameristar employment manual, clearly states that regardless of the status of an

employee, no contractual agreement expressed or implied is created. Any assertion by Buchanan that she

was a contract employee of Ameristar is belied by her own signature on forms which clearly define her

status as an at-will employee.

¶7.     Furthermore, Buchanan does not allege that she was terminated for refusing to participate in illegal

acts at the request of Ameristar or that she was terminated for reporting illegal acts performed by

Ameristar. Because Buchanan’s termination does not meet the requirements of the exceptions as set forth

above, she is precluded by the employment at will doctrine from bringing an action for retaliatory discharge.

We find that Buchanan has failed to establish a genuine issue of material fact which would allow her relief

in this matter.



                                         CONCLUSION

¶8.     For these reasons, we find that the trial court did not err in granting summary judgment in favor

of Ameristar, and we affirm the trial court's judgment.

¶9.     AFFIRMED.

      PITTMAN, C.J., SMITH, P.J., WALLER , COBB AND CARLSON, JJ., CONCUR.
McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY,
J. DIAZ, J., NOT PARTICIPATING.




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        McRAE, PRESIDING JUSTICE, DISSENTING:

¶10.    This is just another classic example of this Court's refusal to see the errors of its ways and overrule

Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss. 1981). Here again, we have an employee

whose employment was terminated in retaliation for her filing of a workers' compensation claim for work-

related injuries. It is only logical that the company be held liable for such retaliatory conduct since both

employees and employers are forced into a statutory contract by the Workers' Compensation Act (Act).

Miss. Code Ann. §§ 71-3-3, 71-3-5, & 71-3-9. Under the Act, employees give up their rights to sue

employers for work- related injuries in exchange for the assurance that those injuries will be compensated

by workers' compensation benefits. Miss. Code Ann. §§ 71-3-5 & 71-3-9 (Rev. 2000). However, this

statutory contract does not contemplate the retaliatory firing of employees who choose to pursue their right

to recover for work-related injuries under the Act. For this reason, I dissent.

¶11.    In Kelly, this Court had the opportunity to find that retaliatory firing as the result of an employee's

filing of a workers' compensation claim was in fact an independent cause of action. 397 So.2d at 874.

However, this Court chose to plod the straight and narrow and limit the rights of employees by finding that

no independent cause of action exists under the Act. Therefore, the Court declined to create a judicial

exception since it is more proper for the Legislature to carve out exceptions. Id. at 874-78.

¶12.    Then in McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 604-06 (Miss. 1993), this

Court addressed whether an independent suit for wrongful termination could be maintained by an employee

who claimed to have been terminated in retaliation to his reporting of unlawful conduct to his employer.

This Court carved out two exceptions to the employment at will doctrine: "(1) an employee who refuses

to participate in an illegal act as in Laws v. Aetna Finance Co., 667 F. Supp. 342 (N.D. Miss. 1987)]

shall not be barred by the common law rule of employment at will from bringing an action in tort for

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damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer

to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort

for damages against his employer." 626 So. 2d at 607.

¶13.    No other exceptions have been provided by this Court, despite the obvious harsh effect of a

retaliatory discharge for the filing of a workers' compensation claim under the Act. By statutory contract,

the employer agrees to submit itself to liability for work-related injuries under the Act, and the employee

agrees to use the Act as his only remedy for work-related injuries. Miss. Code Ann. §§ 71-3-3, 71-3-5,

& 71-3-9. It is contrary to the Act's purposes of encouraging cooperating with other state and federal

authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or

occupational disease, their rehabilitation or restoration to health and vocational opportunity", to force

employees to forego the opportunity to pursue a private right of action for retaliatory termination Miss.

Code Ann. § 71-3-5. Surely, when employees are forced by statute to give up their right to sue for work-

related injuries, they should not also be expected to give up any right to private action for retaliatory

termination due to their filing of a claim under the Act.

¶14.    I would overrule Kelly, recognize a cause of action for retaliatory discharge, reverse the trial

court's judgment, and remand this case for a trial.

¶15.    For these reasons, I dissent.

        EASLEY, J., JOINS THIS OPINION.




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