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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                      No. 19-60001                         FILED
                                                                   September 27, 2019
                                                                      Lyle W. Cayce
MAXWELL SIMMONS,                                                           Clerk

                                                 Plaintiff - Appellant
v.

PACIFIC BELLS, L.L.C.,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:17-CV-746


Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Max Simmons appeals the district court’s dismissal of his lawsuit,
arising out of his termination from a Taco Bell restaurant operated by Pacific
Bells, L.L.C. Simmons alleges that he was fired because he served on a jury
and refused to lie to avoid jury service. The district court granted summary
judgment for Pacific Bells, finding that no private cause of action exists under
the Mississippi statute prohibiting employers from retaliating against
employees for jury service. The district court also found that there was no


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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genuine dispute of material fact regarding whether Simmons was fired for
refusing to lie to avoid jury service. For the following reasons, we REVERSE
and REMAND.
                                       I.
                                       A.
      Max Simmons began working for a Taco Bell restaurant operated by
Pacific Bells, L.L.C. (“Pacific Bells”) in February 2017. Simmons was hired as
a “bench” general manager, a position intended to train an employee to become
a restaurant general manager (“RGM”). Carolyn Henderson, the RGM of the
Taco Bell on Highway 80 East in Jackson, Mississippi, where Simmons
worked, supervised his training and performance. The Taco Bell had two other
managers: Lamesha Taylor, the assistant manager, and Thelma Dobson, the
shift manager.
      In mid-July 2017, Simmons received a jury summons requiring him to
appear on July 31, and he alleges that he told Henderson about the summons
soon after receiving it. According to Simmons, Henderson instructed him to
“find a way to get out of jury duty.” Simmons instead requested time off for
jury duty, as well as two additional days so that he could visit family. He made
these requests two weeks in advance.
      Despite this request, Henderson scheduled Simmons to work. In
response, Simmons texted Henderson on July 23: “I requested the 29 and 30 of
July! . . . I have jury duty on the 31 of July. Please do not Schedule [sic] to
work.” Four days later, Simmons texted Annette Banger, the equivalent of the
local district manager for Pacific Bells: “I asked to be off this coming
WEEKEND . . . I have JURY DUTY AT 800 am Monday morning. I can not
close Sunday. I need your help with this matter plz [sic].” Simmons also called
the employee hotline the next day to voice his concerns. Banger later told


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                                 No. 19-60001
Simmons that he did not have to work past Friday, and Simmons did not work
that weekend or while he was scheduled for jury duty on July 31.
      Simmons was selected for jury service and served from August 1 through
August 8, 2017. When he returned to work, Henderson and Banger told
Simmons that he was fired due to his tardiness. This was the first time
Simmons was reprimanded for being late. Simmons was sometimes tardy, even
by several hours, but he claimed that his tardiness often resulted from Pacific
Bells’s business practices. For example, the company required him to transport
products from other Taco Bell locations on his way to work, and he was
encouraged to arrive late or leave early to reduce overtime costs when business
was slow. Other employees were tardy more frequently than Simmons, but
they were not terminated. Before Simmons’s termination, Henderson sent an
email to a colleague stating: “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.”
                                       B.
      Simmons filed suit against Pacific Bells, alleging that his termination
violated Mississippi law and public policy. Specifically, Simmons alleged that
his termination due to tardiness was pretextual and that he was really fired
for refusing to lie to avoid jury duty and for his subsequent jury service.
      Pacific Bells moved for summary judgment, arguing that Mississippi law
does not permit a private cause of action for employees terminated because of
jury service. Pacific Bells also argued that Simmons’s termination did not
violate Mississippi law because Banger, the person who decided to fire
Simmons, had no knowledge of his alleged refusal to lie to avoid jury service.
Although Henderson recommended firing Simmons to Banger and was present
for his termination, Henderson stated in an affidavit that her recommendation
predated her knowledge of Simmons’s jury summons. The district court
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accepted both arguments and granted summary judgment dismissing
Simmons’s claims.
                                             II.
       We review a grant of summary judgment de novo. Guilbeau v. Hess
Corp., 854 F.3d 310, 311 (5th Cir. 2017). Summary judgment is proper “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 issue of material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Crawford v. Formosa
Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). In reviewing a motion for summary
judgment, the “court construes ‘all facts and inferences in the light most
favorable to the nonmoving party.’” Rogers v. Bromac Title Servs., L.L.C., 755
F.3d 347, 350 (5th Cir. 2014) (quoting McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012)).
       In doing so, the court must “disregard all evidence favorable to the
moving party that the jury is not required to believe,” which may include
evidence from interested witnesses. Thomas v. Great Atl. & Pac. Tea Co., 233
F.3d 326, 329 (5th Cir. 2000). 1 If the “moving party’s affidavit raises subjective
questions such as motive, intent, or conscience,” cross-examination, not
summary judgment, is the “best means of testing the credibility of this kind of
evidence.” 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2727.2 (4th ed. 2016) (citing Alabama Great S. R. Co. v. Louisville
& N.R. Co., 224 F.2d 1, 5 (5th Cir. 1955)). Consequently, summary judgment


       1 The precise definition of an interested witness has remained elusive. See, e.g.,
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002) (noting that the
definition “cannot be so broad” as to require disbelieving all corporate agents). Nonetheless,
the definition includes those with a “direct and private interest in the matter at issue.”
Interested witness, Black’s Law Dictionary (11th ed. 2019).
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is often precluded when “employees allege that other legally improper motives
were the basis for some adverse employment decision” because that raises
“questions of fact regarding the employer’s knowledge or state of mind.” 10B
Wright & Miller, supra, at § 2732.3.
                                       III.
      Mississippi law prohibits employers from “persuad[ing] or attempt[ing]
to persuade any juror to avoid jury service” or “subject[ing] an employee to
adverse employment action as a result of jury service.” Miss. Code Ann. § 13-
5-35. Mississippi law also provides a “narrow public policy exception to the
employment at will doctrine . . . [for] an employee who refuses to participate in
an illegal act.” McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603, 607 (Miss.
1993).
      We first evaluate whether Mississippi tort law allows Simmons to sue
his employer for terminating him in violation of § 13-5-35. We then evaluate
whether there is a genuine dispute of material fact regarding whether
Simmons was fired as a result of his refusal to lie to avoid jury service. We
conclude in favor of Simmons on both counts.
                                       A.
      We apply Mississippi substantive law to determine whether an employer
may be liable for a wrongful discharge of an employee for serving on a jury. If
the “State’s highest court has not spoken on the direct question,” we must make
an “Erie guess and determine” how the State’s highest court would resolve the
issue. Jatera Corp. v. U.S. Bank Nat’l Ass’n, 917 F.3d 831, 835 (5th Cir. 2019)
(citation omitted). To do so, we “may look to the decisions of intermediate
appellate state courts for guidance.” ExxonMobil Corp. v. Elec. Reliability
Servs., Inc., 868 F.3d 408, 414 (5th Cir. 2017) (quoting Howe v. Scottsdale Ins.
Co., 204 F.3d 624, 627 (5th Cir. 2000)). If these cases do not exist, we look to
other sources such as “(1) decisions of the Mississippi Supreme Court in
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                                       No. 19-60001
analogous cases, (2) the rationales and analyses underlying Mississippi
Supreme Court decisions on related issues, [and] (3) dicta by the Mississippi
Supreme Court.” Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378,
382 (5th Cir. 1998).
       We conclude that an employee may sue his employer for wrongfully
discharging him for serving on a jury in violation of § 13-5-35. While the
Mississippi Supreme Court has not directly addressed the issue, we find
Swindol v. Aurora Flight Sciences Corp., 194 So. 3d 847 (Miss. 2016),
instructive. That case concerned a Mississippi statute stating that employers
may not “establish, maintain, or enforce 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.
       The court determined that this statute created a statutory exception to
Mississippi’s employment-at-will doctrine and therefore could be vindicated
through a wrongful discharge tort action. Swindol, 194 So. 3d at 852-54. In
doing so, the court recognized a line of caselaw that permits employees to “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
854 (emphasis in original) (quoting McArn, 626 So. 2d at 606)). The Swindol
court reasoned that, by enacting a statutory restriction on employers, the
Mississippi legislature “independently declared via Section 45-9-55 that
terminating an employee for having a firearm inside his locked vehicle is
legally impermissible.” Id. (internal quotation marks omitted). 2 The Swindol


       2The court also found support for this interpretation in the Mississippi Constitution
and the state’s concealed-carry law, both of which provide additional rights to gunowners. Id.
at 853-54; see also Miss. Const. art. 3, § 12 (granting “citizens the right to keep and bear
arms”); Miss. Code Ann. § 97-37-1(2) (noting that carrying a firearm within a vehicle is not a
crime).
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court therefore concluded that “[w]hile Mississippi is an at-will employment
state, that doctrine is not absolute. . . . [T]he doctrine must yield to express
legislative action and/or prohibitions found in federal or state law.” Id. at 855.
       We see no compelling reason to distinguish Swindol. Section 13-5-35(1)
states that “[i]t shall be 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.” The statute also states that
“[a]ny violation . . . shall be deemed an interference with the administration of
justice and a contempt of court and punishable as such.” Id. at § 13-5-35(3).
Like the statute at issue in Swindol, the Mississippi legislature independently
declared via § 13-5-35 that terminating an employee for jury service is legally
impermissible. 3 Accordingly, the employment-at-will doctrine must yield to the
express legislative prohibitions found in § 13-5-35.
       Pacific Bells’s attempt to distinguish Swindol is unavailing. Pacific Bells
argues that, unlike the statute at issue in Swindol, § 13-5-35 contains an
express remedy—violations “shall be deemed an interference with the
administration of justice and a contempt of court and punishable as such”—so
the statute should not be read to support tort liability. § 13-5-35(3). Under
Mississippi law, however, the explicit potential for criminal punishment leans
in favor of finding a cause of action. See Swindol, 194 So. 3d at 849 (noting that
the “court based its decision largely on the lack of a statutory provision
expressly making it a crime” (citing Kelly v. Miss. Valley Gas Co., 397 So. 2d
874, 876 (Miss. 1981))). Regardless, the language in Swindol is clear, and it




       3  Like Swindol, the Mississippi Constitution also protects the underlying activity at
issue. Miss. Const. art. 3. § 31 (“The right of trial by jury shall remain inviolate.”); see also
id. at § 26 (establishing the right to a “speedy and public trial by an impartial jury”).
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does not rely on the absence of an express statutory remedy. 4 We therefore hold
that Simmons may sue his employer for wrongfully terminating him in
violation of § 13-5-35.
                                              B.
       We next address whether there was a genuine issue of material fact
regarding whether Simmons was fired over his refusal to participate in an
illegal act by lying to avoid jury service. We find that a jury could conclude that
Simmons was fired as a result of his refusal to lie, and therefore summary
judgment was inappropriate.
       While Mississippi is an at-will-employment state, it is undisputed that
there is a “narrow” public-policy exception that permits an employee to sue for
wrongful termination if the employee is discharged for “refus[ing] to
participate in an illegal act” or for “reporting illegal acts of his employer.”
McArn, 626 So. 2d at 607. To prevail on this claim, the “plaintiff must establish
some causation between . . . the alleged misconduct and the decision process
resulting in the discharge.” Dismuke v. City of Indianola, 32 F. App’x 126, at
*4 (5th Cir. 2002) (unpublished) (per curiam) (citing Hust v. Forrest Gen. Hosp.,
762 So. 2d 298, 301-02 (Miss. 2000)). Under a cat’s-paw theory, a supervisor’s
recommendation to terminate an employee can serve as the proximate cause
of an independent decisionmaker’s decision to do so. See, e.g., Zamora v. City




       4 Pacific Bells also asserts that Swindol relied on § 49-5-55(5) to authorize a private
cause of action. This argument misreads Swindol. Section 49-5-55(5) provides that employers
shall not be liable for damages “resulting from or arising out of an occurrence involving the
transportation, storage, possession or use of a firearm covered by this section.” The court
noted that this section merely limited the liability of employers “for the actions of employees
or third parties” in the context of firearm storage. Swindol, 194 So.3d at 854. This addressed
the defendant’s argument that the subsection immunized employers from all liability,
including for firing employees. In other words, the Swindol court did not rely on § 49-5-55(5)
for its holding that the statute established “express legislative action” and “state law
prohibitions” under the Mississippi wrongful discharge tort.
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of Houston, 798 F.3d 326, 331-32 (5th Cir. 2015) (noting that “cat’s paw
analysis remains viable in the but-for causation context”). 5
       Pacific Bells asserts that Simmons cannot establish that his refusal to
lie caused his termination. The company points to statements by Banger that
she was unaware of Simmons’s alleged refusal to lie and that Henderson
recommended Simmons’s termination before knowing about his jury summons.
Nonetheless, Pacific Bells bears the burden of proof as the moving party.
Pacific Bells puts forth no contemporaneous evidence demonstrating that
Simmons’s termination was decided before his jury summons. And a jury is not
required to believe the statements of interested witnesses. Henderson is an
interested witness because she has a direct and private interest in the matter;
she allegedly instructed Simmons to commit an illegal activity (lying to avoid
jury service) and recommended his termination because of his failure to do so. 6
       In contrast, Simmons has produced circumstantial evidence that a
reasonable jury could credit. He raised specific facts indicating that his
termination for tardiness may have been pretextual. First, Simmons was tardy
less often than other coworkers, yet those coworkers were not terminated and
did not suffer adverse employment action. Second, he was never once warned
about his tardiness prior to his termination. Third, Simmons demonstrated
that some of his tardiness resulted from Pacific Bells’s business practices.
Fourth, he was terminated immediately following his jury service. Fifth, the
individual who told Simmons to lie recommended his termination and was



       5  The parties conceded at oral argument that Mississippi recognizes a cat’s-paw theory
of employer liability. “The term ‘cat’s paw’ derives from a fable conceived by Aesop. . . . In the
fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the
cat has done so, burning its paws in the process, the monkey makes off with the chestnuts
and leaves the cat with nothing.” Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011).
        6 We need not address whether Banger is an interested witness and therefore express

no position on the issue.
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present for it. Sixth, the individual who terminated Simmons stated in an
email that she had “several different routes I can go with his termination. . . .
I want to focus on [his] excessive tardiness.”
          In sum, the timing of Simmons’s termination, combined with the
arguably pretextual rationale for his firing, could lead a reasonable jury to
conclude that he was fired as a result of his refusal to lie to avoid jury service.
Simmons does not need to establish that Banger fired him because of his
refusal to lie. He only needs to demonstrate that Henderson’s recommendation
caused his termination and that her recommendation was motivated by his
refusal to lie.
          This factual dispute is within the province of the jury. A trial will permit
a jury to weigh the evidence and assess the credibility of Banger’s,
Henderson’s, and Simmons’s assertions with the benefit of cross-examination.
We find that summary judgment was inappropriate because there is a genuine
dispute of material fact whether Simmons was fired as a result of his refusal
to lie.
                                           IV.
          We REVERSE and REMAND for further proceedings consistent with
this opinion.




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