                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                         REVISED JULY 28,2005
                                                                   July 14, 2005
              IN THE UNITED STATES COURT OF APPEALS
                                                             Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                       Clerk



                             No. 05-60028



ERICA WILLIS TANKS, as Administrator of
the Estate of THOMAS WILLIS, as Personal
Representative of THOMAS WILLIS, for the
Benefit of All Heirs of THOMAS WILLIS, and
as natural daughter of THOMAS WILLIS,

                                                   Plaintiff-Appellee,

versus

LOCKHEED MARTIN CORP; ET AL,

                                                             Defendants,

LOCKHEED MARTIN CORP.; LOCKHEED MARTIN
AERONAUTICAL SYSTEMS SUPPORT CO., doing
business as LOCKHEED MARTIN AERONAUTICS
COMPANY-MARIETTA,

                                                 Defendants-Appellants.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi

                         --------------------

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

WIENER, Circuit Judge.

     Defendants-Appellants    Lockheed   Martin    Corp.   and    Lockheed

Martin Aeronautical Systems Support Co. (“Lockheed”) took this

interlocutory appeal, certified by the district court pursuant to

28 U.S.C. § 1292(b), seeking reversal of the district court’s
partial summary judgment in favor of Plaintiff-Appellant Erica

Tanks.   The district court held that, under the discrete facts and

circumstances of this case, the “exclusive remedy” provision of the

Mississippi Workers’ Compensation Act (“MWCA” or “the Act”),1 which

generally precludes an employee from recovering from his employer

on a state law tort cause of action, does not preclude Tanks from

pursuing against Lockheed her state tort cause of action based on

the workplace death of her father, Thomas Willis (“Willis” or

“decedent”).      The   district   court   nevertheless   certified,   for

interlocutory appeal, the question whether the MWCA provides the

exclusive remedy for Tanks’s state law claims.                Our grant of

Lockheed’s appeal on the single issue thus certified limits our

review to that question.

     As an initial matter, we disagree with the district court’s

view that the question it certified to us is an open one under

these circumstances, and thus decline to certify it further to the

Supreme Court of Mississippi. Deciding this question as we believe

the Supreme Court of Mississippi has and would, we conclude that,

under    the   current     state    of     the   applicable    Mississippi

jurisprudence, Willis’s death —— which was a result of the willful

act of a co-worker while both men were on the job —— is compensable

under the MWCA.     This in turn makes compensation under the MWCA


     1
       Miss. Code Ann. § 71-3-1, et seq., (2004). All Code
references are to the 2004 Mississippi Code Annotated unless
otherwise indicated.

                                     2
Tanks’s exclusive remedy against Lockheed.           We therefore reverse

the non-exclusivity ruling of the district court vis-à-vis Tanks’s

state law tort claims, render a partial summary judgment for

Lockheed, dismissing Tanks’s state law claims, and remand this case

for proceedings on the federal claims advanced in her Third Amended

Complaint.

                        I. FACTS AND PROCEEDINGS

     This case arises from a horrific tragedy that occurred in July

2003, at Lockheed’s plant in Lauderdale County, Mississippi.             At

the time, the decedent was an assemblyman who had been employed by

Lockheed   for   more   than   33   years;   a   co-worker,   Douglas   Paul

Williams, was also an assemblyman in that plant and had been

employed by Lockheed for 19 years.           Willis, who was black, and

Williams, who was white, regularly worked in close proximity to

each other.   Both perished at Lockheed’s plant from gunshot wounds

inflicted by Williams in the course of a shooting spree during

which Williams killed or wounded several of his co-workers before

turning one of his guns on himself.          In addition to the decedent,

a number of other Lockheed employees —— some black, some white ——

were shot by Williams during the course of his rampage:            Some of

the other victims died from their gunshot wounds; others survived.

Like the decedent and Williams, all the other victims were Lockheed

employees who were at the plant and at work at the time that they

were shot.



                                      3
     In her original diversity-jurisdiction tort complaint filed in

district court, and again in her Third Amended Complaint, Tanks

related   numerous     factual      allegations       detailing     Williams’s

longstanding and widely-known bigotry against his African-American

“co-workers.”    Her complaints are entirely devoid, however, of

allegations of any demonstrated racial animus or overt acts against

African-Americans, either co-workers or non co-workers, anywhere

outside the Lockheed plant site.                Stated differently, Tanks’s

allegations of Williams’s hatred, prejudice, and bigotry towards

blacks exclusively address his co-workers and his workplace.               For

example, she alleged that Williams harbored racial hatred towards

his African-American “co-workers”; that he was known to be violent

towards his “co-workers”; that Lockheed was aware of Williams’s

animus towards his “co-workers and Lockheed’s management at the

Plant”; that Williams “came to work and parked in the employee

parking lot with loaded firearms in his truck”; that he informed

Lockheed of his hatred towards his “co-workers,” warning that, if

his being   required    to   work   with    blacks    were    not   alleviated,

“violent consequences could occur”; that he had made threatening

remarks to African-American “co-workers”; that he and a fellow

white   “co-worker”    had   attempted     to    intimidate   their   African-

American “co-workers”; that Williams instigated racial taunts and

abuse towards his African-American “co-workers”; and on and on. In

essence, all of Tanks’s allegations that implicate Williams’s overt

racism and anti-black animus are made exclusively in the context of

                                      4
the workplace    and   his   “co-workers,”   black   and    white.       These

allegations are obviously intended to support Tanks’s state tort

claims (and, eventually, federal discrimination claims) against

Lockheed, grounded in, inter alia, negligence, gross negligence,

willful and wanton inaction in the face of longstanding knowledge

of Williams’s condition and the threat to the safety of co-workers

on the job.

       After limited discovery, Lockheed moved for partial summary

judgment on the pleadings and several uncontested facts submitted

by it, including its compliance with its MWCA duty to insure its

liability for workers’ compensation benefits.              Lockheed argued

that   Williams’s   injury   is   compensable   under      the   MWCA,   and,

consequently, that Lockheed is entitled to immunity from Tanks’s

other state tort law claims on the basis of the Act’s exclusive

remedy provision.      The district court nevertheless agreed with

Tanks that Willis’s death was not compensable under the Act and

denied summary judgment. Lockheed moved for reconsideration or, in

the alternative, certification of the question for interlocutory

appeal.    The district court denied reconsideration but certified

the action for interlocutory appeal. In granting the motion for

interlocutory appeal, the district court identified as a material

legal question under 28 U.S.C. § 1292(b) the compensability of

Willis’s fatal injury under the MWCA, characterizing the state of

the law as unsettled, and noting the centrality of the question to



                                    5
the claims and this court’s authority to certify such a question to

the Supreme Court of Mississippi.

                               II. ANALYSIS

A.   Standard of Review

     The district court certified its decision for interlocutory

appeal, and we granted Lockheed’s motion for leave to appeal the

district court’s denial of its motion for summary judgment pursuant

to our authority under 18 U.S.C. § 1292(b).        Although we ordinarily

review a district court’s summary judgment ruling de novo,2 our

appellate jurisdiction under § 1292(b) extends only to controlling

questions of law, thus, we review only the issue of law certified

for appeal.3    We therefore determine de novo whether the district

court properly interpreted the MWCA, using the same method of

interpretation as would the Mississippi Supreme Court.4

B.   Interpreting the MWCA

     The    district   court   denied    Lockheed’s   motion   for   summary

judgment,    concluding   that,   even    though   Mississippi   case   law

interpreting the MWCA is unclear, the decedent’s injuries were not

compensable under the Act.        Therefore, reasoned the court, the

MWCA’s exclusive remedy provision did not bar Tanks from pursuing

     2
         MacDonald v. Monsanto, 27 F.3d 1021, 1023 (5th Cir. 1994).
     3
       Malbrough v. Crown Equip. Corp., 392 F.3d 135, 136 (5th
Cir. 2004).
     4
       See La. Patients’ Comp. Fund Oversight Bd. v. St. Paul
Fire & Marine Ins. Co., No. 04-30591, 2005 U.S. App. LEXIS 10431
at *6 (5th Cir., June 7, 2005).

                                    6
other state law remedies.           We agree with the district court’s

thorough    discussion   of    Mississippi   case   law,5    including     its

determination that an earlier line of decisions, beginning with

Mutual Implement & Hardware Insurance Co. v. Pittman6 in 1952,

appears to conflict with a later line, commencing with Miller v.

McRae’s7 in 1984.        We shall not retrace the district court’s

careful    analysis   except   to   reiterate   briefly     the   rules   that

undergird our decision.

     1.     Elements of Proof: Compensability for Co-Worker Assault
            under the MWCA

     Under the MWCA and the Mississippi jurisprudence that has

evolved over the past six decades, if the injury (here, death) is

compensable under the Act, compensation under the MWCA is the

exclusive state law tort remedy available to the employee or his

successors.8    Courts determine whether a plaintiff is entitled to

compensation under the MWCA or whether his other tort claims are

barred by the MWCA’s exclusivity provision, by inquiring only

“whether the injury is compensable under the act.”9          The sole issue



     5
       See Tanks v. Lockheed-Martin Corp., 332 F. Supp. 2d 953,
956-64 (S.D. Miss. 2004).
     6
         59 So. 2d 547 (Miss. 1952).
     7
         444 So. 2d 368 (Miss. 1984).
     8
       Miss. Code Ann. § 71-3-9; Hurdle v. Holloway, 848 So. 2d
183, 185 (Miss. 2003).
     9
         Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 625 (Miss.
2002).

                                      7
before us, then, is whether Willis’s injury, i.e., his death from

the intentional shooting at the hands of a co-worker while both

were at work, is compensable under the Act.

     Under § 71-3-7 of the MWCA, an employer is liable to pay

compensation for the disability or “death of an employee from

injury...arising out of and in the course of [his] employment,

without regard to the fault as to the cause of the injury....”10

In the definitional section of the Act (§ 71-3-3), subsection (b)

defines “injury” to mean

     accidental...death arising out of and in the course of
     employment without regard to fault which results from an
     untoward event...if contributed to or aggravated or
     accelerated   by   the   employment   in  a   significant
     manner....Untoward    event   includes   events   causing
     unexpected results. An untoward event or events shall
     not be presumed to have arisen out of and in the course
     of employment, except in the case of an employee found
     dead in the course of employment.

The final narrowing of the focus of this definition is found in the

ensuing sentence in § 71-3-3(b):      “This definition...includes an

injury caused by the willful act of a third person directed against

an employee because of his employment while so employed and working

on the job....”11

     Despite this explicit language defining injury to include

willful acts by a third party, the Mississippi Supreme Court’s

Pittman line of cases, beginning shortly after enactment of the


     10
          Miss. Code Ann. § 71-3-7 (emphasis added).
     11
          Emphasis added.

                                  8
MWCA in 1942, implicitly relied on a presumption that willful

assaults by co-workers were accidental.12   In Pittman, the court

held such attacks to be risks “incident to employment of many

persons” and therefore compensable under the MWCA.13 In Pittman and

later cases, the Mississippi court focused on whether an assault

arose “out of and in the course of employment” rather than focusing

on the intent of the assailant.14

     In 1984, however, “[a] shift in the focus of the inquiry, and

in the court’s view of what is ‘accidental,’ began.”15   In Miller,

the Mississippi Supreme Court decided that a claim for damages

resulting from false imprisonment arose not from an accident but

from a willful act, making it necessary to determine whether such

an intentional act was encompassed within § 71-3-3(b)’s definition

of compensable injury, viz., whether it was “an injury caused by

[1] the willful act [2] of a third person [3] directed against an

employee [4] because of his employment [5] while so employed and




     12
        Tanks, 332 F. Supp. 2d at 958 (“In Hutto, as in
Watson and Pittman, the court obviously considered the shooting
to have been ‘accidental,’ at least from the victim’s standpoint.
..”)(citing Watson v. Nat’l Burial Ass’n, Inc., 107 So.2d 739
(Miss. 1958); Kerr-McGee Corp. v. Hutto, 401 So. 2d 1277 (Miss.
1981)).
     13
       Pittman, 59 So. 2d at 553 (quoting Verschleiser v. Joseph
Stern Son, Inc., 128 N.E. 126, 127 (N.Y. 1920).
     14
          Tanks, 332 F. Supp. 2d at 958.
     15
          Id.

                                  9
working on the job...”16       A “third person,” the court concluded,

includes a co-worker who is not acting in the course and scope of

his employment and in furtherance of the employer’s business.17

      Here, in summarizing the Miller line of cases, the district

court explained when intentional assaults by third parties or co-

workers acting outside the course and scope of their employment are

compensable under the MWCA:

                 [I]f  in    committing   an    assault,   the
           employee/assailant was acting outside the course
           and scope of his employment, his status is viewed
           as analogous to that of a stranger to the
           employment relationship, and his act falls within
           the coverage of the Act, and subject to the
           exclusivity bar, only if directed against an
           employee “because of his employment while so
           employed and working on the job.”...On the other
           hand,    if  in    committing   an   assault,   the
           employee/assailant was acting in the course and
           scope of his employment and in furtherance of his
           employer's business, then the injury caused thereby
           is not compensable under the Act, and consequently
           the exclusivity bar does not apply.18

      There is no question that three of the five Miller elements

are   satisfied    in   this   case:        Williams’s   actions   were   (1)

intentional and (2) directed at Willis (3) while Willis was “so




      16
           Miller, 444 So.2d at 370-71.
      17
       Id. at 371. This interlocutory appeal of the district
court’s ruling, which is grounded in Tanks’s original complaint
only, does not implicate the federal constitutional and statutory
claims that Tanks raised in her Third Amended Complaint, even
though, for purposes of this appeal, Lockheed accepts as true all
relevant facts alleged in Tanks’s Third Amended Complaint.
      18
           Tanks, 332 F. Supp. 2d at 962-63.

                                       10
employed and working on the job.”19                 As for the first of the two

remaining        Miller    elements,      the     district     court   concluded     ——

correctly —— that Williams must be considered a third party because

he acted “outside the course and scope of his employment.”20                        But

as for the second remaining Miller element, the district court

concluded —— incorrectly under Miller —— that, despite the fact

that Williams acted outside the course and scope of his employment,

judgment of dismissal could not be granted to Lockheed on the basis

of the MWCA’s exclusivity bar.                The court’s expressed reason was

its inability to discern allegations or evidence suggesting that

Williams’s actions “were directed against his victims ‘because of

their employment.’”21         In contrast, we perceive a plethora of both.

We   shall,      therefore,        address   in   more    depth   these     final   two

elements, viz., (1) whether Williams acted in the course and scope

of his employment and (2) whether Willis was injured because of his

employment.

      2.      Acting Outside the Course and Scope of Employment; “Third
              Party” Status under the MWCA

      We agree with the district court that Williams’ actions were

outside     of    the     course    and   scope    of    his   employment    and    must

therefore be characterized as the acts of a third person.22                         The


      19
           Miss. Code Ann. § 71-3-3(b).
      20
           Id.
      21
           Tanks, 332 F. Supp. 2d at 964 (emphasis added).
      22
           See Miller, 444 So.2d at 371.

                                             11
Mississippi Supreme Court defines actions taken in the “course and

scope” of employment with respect to respondeat superior tort

liability as acts “committed in the course of and as a means to

accomplishing the purposes of the employment and therefore in

furtherance     of   the   master’s    business...[or]   tortious   acts

incidental to the authorized conduct.”23 An employee’s unauthorized

acts may yet be within the course and scope of employment if they

are of the “same general nature as the conduct authorized or

incidental to that conduct.”24        An intentional violent assault on

a co-worker is quite obviously neither committed as a means of

accomplishing the purposes of the employment nor of the same

general nature as authorized conduct.25 None can seriously question

     23
       Adams v. Cinemark U.S.A., Inc., 831 So. 2d 1156, 1159
(Miss. 2002).
     24
          Id.
     25
       See id. (“It is obvious that Thomas's tortious act of
assaulting Adams was not authorized or in furtherance of
Cinemark's business.”). See also Hawkins v. Treasure Bay Hotel &
Casino, 813 So. 2d 757, 759 (Miss. Ct. App. 2001)(holding
intentional assault by co-worker to be outside the course and
scope of employment). By contrast, when the court has denied
coverage under the MWCA for intentional injuries, the assailant
co-workers are arguably acting within the course and scope of
their employment. See, e.g., Royal Oil Co. v. Wells, 500 So. 2d
439, 441-42 (Miss. 1986)(holding that employee’s claims against
her employer for malicious prosecution, arising out of a
supervisor’s charge that she had stolen money from a cash
register, was not barred by the MWCA and noting that the
supervisor who instigated false charges against her is not a
third person for purposes of the Act); Miller, 444 So. 2d at 371
(noting that injury arose out of questioning and detainment by
the head of defendant employer’s security department as a result
of the employer’s suspicion that the plaintiff-employee was
stealing funds).

                                      12
that, for purposes of the MWCA, Williams’s shooting spree was the

act   of    a    third   person   outside    the   course   and   scope   of   his

employment.

      3.        Injury “Because of” Employment

      Injuries or death caused by the malicious and intentional acts

of a third party are compensable if they are inflicted “because of”

the employee’s employment. It is the district court’s statement

that nothing suggests that Willis was injured “because of” his

employment        with   which    we   disagree.      Williams’s     underlying

motivation was rooted in his deep-seated racial hatred, but it is

clear beyond cavil that his willful act directed at his co-workers

while all were on the job was based on —— “because of” —— their

employment.

      “The words ‘because of,’ like the other broadly-construed

words of causation with the Act, such as ‘arising out of,’ express

the necessity of a nexus between the injury and employment.”26 This

nexus requires a showing of minimal causation: only “a rational

connection [between] employment and injury” is necessary.27 Whether

the connection between the injury and the employment is close

enough to demonstrate that a claimant was assaulted “because of”

his employment is a factual question.28                 Still, if the facts

      26
       Big “2" Engine Rebuilders v. Freeman, 379 So. 2d 888,
890-91 (Miss. 1980).
      27
           Id. at 891.
      28
           Id.

                                        13
surrounding     the   cause   of   an    employment-related   injury   are

undisputed, we will treat the issue as a legal one.29

     The Mississippi Supreme Court has determined that the required

nexus between an employee’s injury and his job is not established

when an intentional tort is the result of a personal vendetta and

could have been committed anywhere as easily as at the place of

employment.30     Otherwise, the court has reasoned, employees would

be compensated for injuries or death caused by the employee’s

personal indiscretions and having nothing to do with the employer.31

These hazards cannot reasonably be viewed as risks associated with

employment; neither can their compensation serve the legitimate

state interest in protecting employees from workplace injury.32

     When even a tenuous relationship between an employee’s job and

an intentional injury inflicted by a third party exists, however,

the court has held that the MWCA applies.          A traveling salesman,

assaulted by a motorist whom the salesman stopped to help while on



     29
       Green v. Glen Oaks Nursing Ctr., 722 So. 2d 147, 149
(Miss. Ct. App. 1998)(citing Wilson v. Int’l Paper Co., 108 So.
2d 554, 555 (Miss. 1959); Dependents of Roberts v. Holiday Parks,
Inc., 260 So. 2d 476, 479 (Miss. 1972)).
     30
       Big “2" Engine Rebuilders, 379 So. 2d at 891. See also
Ellis v. Rose Oil Co., 190 So. 2d 450 (Miss. 1966) (holding
claimant unentitled to compensation under the MWCA as he was shot
by his mistress’s husband while at work and such injury had
nothing to do with his employment); Brookhaven Steam Laundry v.
Watts, 59 So. 2d 294 (Miss. 1952)(same).
     31
          Big “2" Engine Rebuilders, 379 So. 2d at 891.
     32
          Id.

                                    14
his sales route, was held to have been injured because of his

employment.33     In concluding that the employee was injured because

of his employment, the court cited the facts that (1) no personal

vendetta motivated the employee’s injury; (2) the employee violated

no instructions concerning the manner in which he carried out his

work; (3) the roadside stop did not cause the employee to deviate

spacially or temporally from his delivery route; and (4) the

salesman’s conduct, helping stranded motorists, was an acknowledged

incident of being on the road.34

           We have interpreted Mississippi jurisprudence on whether an

employee is injured “because of” his employment in a similarly

broad manner. We determined, shortly after the Mississippi Supreme

Court’s     above-discussed     decision   in    Big   “2"   Rebuilders,     that

coverage under the MWCA may be established by considering the

following factors: “(1) the injury occurred within the time frame

of   employment;    (2)   the   employee   was    within     the   spatial   area

required by employment at the time of injury; and (3) there existed

a causal connection between the activity causing injury and the

interests of the employer.”35       In holding that a convenience store

clerk’s rape by a third party was compensable under the Act, we

emphasized that the third factor requires a showing only that “the

      33
           Id.
      34
           Id.
      35
           Williams v. Munford, Inc., 683 F.2d 938, 939 (5th Cir.
1982).

                                      15
obligations or conditions of employment create a ‘zone of special

danger’ out of which the injury arose,” not a causal relation

between the nature of the injury and the employment.36

     With respect to the connection between Willis’s injury and his

employment, the district court stated that there was “nothing to

suggest that at the time of the shootings...[the assailant]’s

actions...were directed against his victims ‘because of their

employment,’” even though the court acknowledged that the shootings

did not arise out of a specific personal disagreement between

Williams and Willis.37      We disagree.      Tanks’s allegations leave no

doubt     that   Willis’s   injury,   like    those   of   other   co-workers,

resulted in principal part because of his longstanding employment

alongside Williams. The district court’s conclusion to the contary

notwithstanding, we discern a plethora of indicators that confirm

that the actions of the assailant, Williams, “were directed against

his victims ‘because of their employment.’”38

     Specifically, Willis was on the job, at the exact time and

place that his employment required him to be there; he was not

violating any instructions in performing his job.39                All relevant


     36
       Id. (quoting Brookhaven Steam Laundry v. Watts, 55 So. 2d
381, 392 (Miss. 1951), rev'd in part and aff'd in part on
rehearing, 59 So. 2d 294 (Miss. 1952)).
     37
          Tanks, 332 F. Supp. 2d at 964 & n.14.
     38
          Id.
     39
       Williams, 683 F.2d at 939;            Big “2" Engine Rebuilders,
379 So. 2d at 891.

                                      16
allegations in Tanks’s complaints demonstrate that the assailant’s

actions    resulted   from     his    ever-increasing    and   uncontrollable

resentment that he was forced by Lockheed to work with, around, and

under African American co-workers.             Thus, Tanks’s allegations are

more than sufficient to establish the required minimal causal nexus

between Willis’s injuries and his employment.                  Indeed, she is

likely judicially estopped from claiming otherwise on appeal.

      In contrast, Tanks’s complaints are devoid of any allegations

that Williams ever acted out of racial animus anywhere other than

at work. Indeed, Tanks’s claim is replete with repeated assertions

that these two co-workers, Williams and Willis, were longtime

Lockheed   employees     who    worked    on   the   plant   floor   “in   close

proximity” to each other; that Williams harbored racial hatred

toward his African American “co-workers” qua co-workers; that he

was known to be violent “toward his co-workers”; that Williams came

to work and parked in the employee parking lot with the loaded

firearms in his vehicle; that he informed Lockheed of his hatred

toward his black co-workers, that he was unhappy regarding his

employment by Lockheed because of being forced to work with blacks,

and   that,   if   the     situation      were    not   alleviated,      violent

consequences could occur; that he made threatening remarks to black

“co-workers”; that he emulated KKK members to intimidate “African

American    co-workers”;       that   Williams    instigated    racial     taunts

towards African American “co-workers”; same with “threats towards

his co-workers”; and, finally and most importantly, that during his

                                         17
work shift on the day of the tragedy, he entered the workplace

armed and began firing at supervisors and co-workers, most —— but

not all —— of whom were African Americans.              We cannot say that

Williams’s acts were directed toward the blacks among his black and

white victims solely because they were black and not because of

their employment:      Based on the pleadings and the record, Williams

assaulted blacks (and whites) only at work.

     All these examples permit no conclusion other than that the

intentional acts of this third-party employee were indisputably

directed against another employee (actually, several employees,

black   and   white)    because   of    his    employment.      Under    these

overwhelming facts, the only viable conclusion is that, regardless

of the ethnicity of the victims, Williams’s acts of shooting cannot

be separated from the employment status of his victims.                 Again,

Tanks’s pleadings are devoid of allegations that Williams ever

acted out against blacks elsewhere in the community —— not in

stores or bars or restaurants or schools or playing fields or

anywhere   except   the    workplace.         His   rampage   was   undeniably

triggered by his uncontrollable anger at being forced to work, day

after day, year after year, with co-workers who were African

Americans.    We would turn a blind eye to reality if we were to

conclude that Williams’s willful acts were directed at most of

these targets solely because they were black and not at all because

they were longtime co-workers who were black (and white).                 They

were shot because they were African American co-workers or white

                                       18
co-workers     (supervisors    who    were       enforcing   Lockheed’s    equal

opportunity employment practices).40

      We are conscious of the apparent conflict between the Pittman

and   Miller    approaches    to     determining      whether   injuries    are

compensable under the MWCA.        The outcome of this case, however, is

the same whether we follow the Pittman line of cases, holding

assault by one co-worker against another to be compensable as an

accident, or the Miller line of cases, holding such assaults to be

compensable when a co-worker acts outside the course and scope of

his   employment   and   because     of    the    victim’s   employment.     We

therefore see no need to certify this question to the Mississippi

Supreme Court.

                              III. CONCLUSION

      The perpetrator, Williams, was an employee who was on the job

when he committed    willful acts, as a third person, that were not

taken in the course and scope of his employment and were directed

against Willis, the victim and a co-worker of Williams, because of

      40
       Tanks also argues that we should affirm the district
court’s ruling because she may be able to demonstrate that
Lockheed intended for Willis’s injury to happen, and that this
intent of the employer is sufficient to remove the case from the
exclusivity bar of the MWCA. The Mississippi Supreme Court has
never held that an employer, even with actual notice of a third
party’s intent to harm an employee, is strictly liable for the
acts of that third party on the employer’s premises outside the
confines of the MWCA. See Newell v. S. Jitney Jungle Co., 830
So. 2d 621, 624 (Miss. 2002)(holding employer not liable to
employee shot at work by her husband, despite actual notice to
the employer of the estranged husband’s threats to harm the
employee, as the court refused to impose strict liability on
businesses for injuries inflicted by third parties on employees).

                                      19
Willis’s employment.        Thus, every element of coverage of a willful

act under the MWCA is met.       And, pursuant to Mississippi case law,

when there is coverage under the MWCA, workers’ compensation is the

employee’s exclusive remedy against his employer vis-à-vis state

tort causes of action.41       We therefore reverse the district court’s

denial of Lockheed’s motion for partial summary judgment, render

judgment granting that motion and thus dismissing Tanks’s state law

claims, and remand the case for further proceedings consistent with

this opinion.

REVERSED AND RENDERED IN PART, and REMANDED IN PART.
DeMOSS, Circuit Judge, specially concurring:

      This case presents a classic federalism issue.              In my view

there is no area of law more “truly local” in nature and effect

than state workers’ compensation law.       See Lopez v. United States,

514 U.S. 549, 568 (1995).       I am disappointed, therefore, that I was

unable to persuade my colleagues on this panel to certify to the

Supreme Court of Mississippi the same narrow question presented to

us on interlocutory appeal.

      The district judge read the controlling Mississippi statute

and relevant Mississippi cases and concluded, contrary to our

instant holding, that the alleged injury is not compensable under

the   MWCA,   given   the    competing   Miller   and   Pittman    lines   of

Mississippi cases.      This disagreement on a foundation of fluid

Mississippi law, especially in a case where multiple injured

      41
        The federal discrimination claims first advanced in the
Third Amended Complaint are not before us in this interlocutory
appeal.
parties have filed multiple claims in both state and federal

courts, weighs heavily in favor of certification to the Supreme

Court of Mississippi.      While we may not compel the Supreme Court of

Mississippi    to   accept    a    certification    of   the   question,   the

possibility that the Mississippi Court would refuse should not

counsel against our submission.         Had we certified the question and

the Supreme Court of Mississippi declined to accept, we would have

no alternative but to offer our “Erie guess”; but if the Supreme

Court   of   Mississippi     had   accepted   and   answered    the   question

certified, the parties in this case and the parties in the several

other law suits involving other victims of this same tragic and

unusual case of workplace violence would have the definitive answer

from the highest court in the state that enacted the controlling

statute.

     I do concur in the well-reasoned and -written opinion authored

by Judge Wiener as our best guess of what the Supreme Court of

Mississippi would conclude if the question were actually before it.

I simply think we should have provided the opportunity to get the

answer directly from the truly final authority.




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