     Case: 14-60779   Document: 00513628343     Page: 1   Date Filed: 08/08/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 14-60779                           FILED
                                                                   August 8, 2016
                                                                   Lyle W. Cayce
ROBERT SWINDOL,                                                         Clerk

             Plaintiff - Appellant

v.

AURORA FLIGHT SCIENCES CORPORATION,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Robert Swindol appealed the district court’s dismissal of his wrongful
discharge and defamation claims against his former employer. In August 2015,
we certified a question concerning this case to the Mississippi Supreme Court.
The court provided its answer on March 24, 2016, for which we express our
sincere gratitude. Applying that court’s analysis, we REVERSE and REMAND
in part, and AFFIRM in part.


                FACTS AND PROCEDURAL BACKGROUND
      Robert Swindol worked for Aurora Flight Sciences Corporation in
Columbus, Mississippi. In May 2013, he parked his truck in Aurora’s employee
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                                  No. 14-60779
parking lot with his firearm locked inside. Aurora’s management learned of
the firearm and fired Swindol later that day for violating company policy
prohibiting firearms on its property. Aurora’s human resources manager then
held a plant-wide meeting to inform employees that Swindol was a “security
risk” and that they should call 9-1-1 if he was seen near Aurora’s facility.
        Swindol sued Aurora, seeking damages for wrongful discharge and
defamation under state law. On Aurora’s motion, the district court dismissed
Swindol’s wrongful discharge claim with prejudice and the defamation claim
without prejudice. Swindol appealed.
        We earlier determined there was diversity jurisdiction, despite Swindol’s
failure to allege Aurora’s citizenship in his complaint, by taking judicial notice
of Aurora’s principal place of business. Swindol v. Aurora Flight Scis. Corp.,
805 F.3d 516, 519 (5th Cir. 2015). We then certified to the Mississippi Supreme
Court the question of the effect of Mississippi Code Section 45-9-55 on the
employment-at-will doctrine. The court answered our question and has denied
a motion for rehearing, making its decision final. Swindol v. Aurora Flight
Scis. Corp., -- So. 3d --, 2016 WL 1165448 (Miss. Mar. 24, 2016), reh’g denied
(July 28, 2016). We now apply that answer to the questions before us. We also
consider the dismissal of Swindol’s defamation claim, an issue which we earlier
deferred until the certified question was answered.


                                  DISCUSSION
   I.      Wrongful discharge claim
        The district court dismissed Swindol’s wrongful discharge claim under
Federal Rule of Civil Procedure 12(b)(6). We review such a dismissal de novo.
Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).
        In his initial briefing, Swindol argued that Aurora wrongfully
terminated him for keeping a firearm locked inside his car in violation of
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                                   No. 14-60779
company policy.      He alleged his action was protected by Section 45-9-55.
Aurora responded that Swindol could not assert wrongful discharge because
Section 45-9-55 did not create an exception to the employment-at-will doctrine.
Because there was no Mississippi law interpreting this statute, we certified the
following question to the Mississippi Supreme Court: “Whether in Mississippi
an employer may be liable for a wrongful discharge of an employee for storing
a firearm in a locked vehicle on company property in a manner that is
consistent with Section 45-9-55.” Swindol, 805 F.3d at 523.
      The Mississippi court responded that this statute can make an employer
liable for wrongful discharge.      Swindol, 2016 WL 1165448, at *6.         After
reviewing its previous caselaw that recognized two public policy exceptions to
the employment-at-will doctrine, the court explained that Section 45-9-55
constitutes “express legislative action” that makes terminating an employee
for having a firearm inside his locked vehicle on company property “legally
impermissible.” Id. at *3–6. The court for the first time recognized a statutory
exception to the employment-at-will doctrine that is equivalent to the public
policy exceptions identified in McArn v. Allied Bruce-Terminix Co., 626 So. 2d
603 (Miss. 1993). Swindol, 2016 WL 1165448, at *7.
      Because the Mississippi Supreme Court equated the statutory exception
under Section 45-9-55 with the public policy exceptions of McArn, we conclude
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, namely, a tort action with the same categories of
relief being available.
      The Mississippi court also explained how Section 45-9-55(5) should be
interpreted. Id. at *7. Section 45-9-55(5) protects an employer from liability
for the actions of employees or third parties due to occurrences that result from
firearms being on company property. Id.
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                                   No. 14-60779
         Swindol alleges he was terminated when Aurora enforced a legally
impermissible firearms policy against him, and he seeks damages. Based on
the Mississippi court’s response, we conclude that Swindol has stated a claim
for wrongful discharge under Mississippi law.


   II.      Defamation claim
         Swindol also brought a defamation claim based on statements Aurora’s
human resources manager made at the plant-wide meeting. The manager
allegedly called Swindol a “security risk” and told employees to call 9-1-1 if
they saw Swindol at the Aurora facility. Swindol claims these statements
constitute slander per se because they implicitly accused him of committing a
crime or being a dangerous person. See Speed v. Scott, 787 So. 2d 626, 632–33
(Miss. 2001) (explaining the significance of slander per se).
         A complaint must “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is “plausible” if it contains
enough factual allegations to allow a “reasonable inference that the defendant
is liable for the misconduct alleged.” Id. A defamation claim under Mississippi
law requires as its first element “a false and defamatory statement concerning
[the] plaintiff . . . .” Franklin v. Thompson, 722 So. 2d 688, 692 (Miss. 1998).
One of the district court’s grounds for dismissing Swindol’s defamation claim
was that Swindol failed to allege that the statements made by the human
resources manager were false, although he claimed they were defamatory. We
agree with the district court that Swindol failed to allege the statements were
false. Therefore, dismissal under Rule 12(b)(6) was proper.
         We AFFIRM the dismissal of Swindol’s defamation claim.                We
REVERSE the dismissal of the wrongful discharge claim and REMAND.




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