Cherry et al v. Huntington Ingalls Incorporated

Filing 56

ORDER granting 42 Motion for Partial Summary Judgment; granting in part and denying in part 44 Motion for Summary Judgment Signed by District Judge Louis Guirola, Jr on 12/02/2019 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JEREMY CHERRY and LOCAL 733 OF
THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS
v.

PLAINTIFFS

CAUSE NO. 1:18CV88-LG-RHW

HUNTINGTON INGALLS
INCORPORATED

DEFENDANT

MEMORANDUM OPINION AND ORDER REGARDING SUMMARY
JUDGMENT MOTIONS
BEFORE THE COURT are the [42] Motion for Partial Summary Judgment
filed by Plaintiff Jeremy Cherry, and the [44] Motion for Summary Judgment filed
by Defendant Huntington Ingalls Inc. (“Ingalls”). Both Motions are fully briefed.
The parties dispute application of a Mississippi statute limiting an employer’s
ability to fire an employee for transporting or storing a firearm in his or her
automobile on company premises. After due consideration of the submissions and
the relevant law, the Court concludes that Jeremy Cherry was wrongfully
discharged. Accordingly, his Motion for Partial Summary Judgment is granted.
Ingalls’ Motion is granted in part and denied in part.
BACKGROUND
In April 2016, Plaintiff Jeremy Cherry was employed by Ingalls as a
cableman in the electrical department of its Pasacagoula shipyard, and a member of
the Local 733 of the International Brotherhood of Electrical Workers. Cherry was
on his way to work, driving on the access road leading to the main gate of the

construction area when a security officer pulled him over for speeding. A
subsequent search revealed a pistol and ammunition clip in the glove box. Cherry
was terminated for violation of company policy prohibiting firearms and other
weapons on company property. He alleges his termination violated his written
employment agreement and Mississippi Code § 45-9-55, which generally forbids an
employer from establishing, maintaining, or enforcing “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(1).1 Cherry’s claims are for beach of employment

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The statute reads in full:

(1) Except as otherwise provided in subsection (2) of this section, a public or private
employer 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.
(2) A private employer may prohibit an employee from transporting or storing a
firearm in a vehicle in a parking lot, parking garage, or other parking area the
employer provides for employees to which access is restricted or limited through the
use of a gate, security station or other means of restricting or limiting general
public access onto the property.
(3) This section shall not apply to vehicles owned or leased by an employer and used
by the employee in the course of his business.
(4) This section does not authorize a person to transport or store a firearm on any
premises where the possession of a firearm is prohibited by state or federal law.
(5) A public or private employer shall not be liable in a civil action for damages
resulting from or arising out of an occurrence involving the transportation, storage,
possession or use of a firearm covered by this section.
Miss. Code. Ann. § 45-9-55.
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contract, breach of the duty of good faith and fair dealing, and negligent infliction of
emotional distress. He seeks compensatory and punitive damages.
Local 733 alleges that Ingalls refused to “submit Cherry’s termination
through the grievance procedure set forth in the collective bargaining agreement”
because “an arbitrator would have to interpret state law – an eventuality prohibited
under the [Collective Bargaining Agreement].” (Compl. 3, 4, ECF No. 1.) Local 733
alleges the refusal was a breach of the CBA because the statute in question had
already been interpreted by the Mississippi Supreme Court. Local 733 seeks an
order requiring Ingalls to abide by the CBA and to submit Cherry’s termination to
arbitration.
THE SUMMARY JUDGMENT MOTIONS
In his motion for partial summary judgment, Cherry argues that Ingalls’
parking lot security measures did not qualify for the exception to § 45-9-55 so that
Ingalls could enforce its weapons policy. Specifically, Ingalls did not maintain a
security station or restrict or limit access to the access road or parking lot through
the use of a gate or other barrier. Cherry contends that as a consequence, his
termination violated Mississippi Code § 45-9-55, and he is entitled to a judgment on
the issue of liability.
Ingalls moves for summary judgment on all claims. It argues first that it is
entitled to judgment as a matter of law on Local 733’s claim of breach of the CBA,
because the Union has waived its right to require Ingalls to arbitrate the dispute.
Ingalls also argues that the claim is not arbitrable because the arbitrator would

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have to interpret the statute to determine if it gives an employee the right to
possess a firearm on company property outside a parking lot.
Second, Ingalls contends it is entitled to judgment on Cherry’s wrongful
discharge claim because Mississippi Code § 45-9-55 does not apply to the facts of
this case. Ingalls argues that the statute applies to locked vehicles in secured
parking lots and does not extend to an employee’s unlocked vehicle on an access
road. Thus, Cherry could be discharged for possession of a firearm discovered in his
unlocked car on an access road leading to a parking lot. Even if the facts of this
case did fall within the statute, Ingalls contends that its parking lots have sufficient
security to qualify for the exception, allowing it to forbid possession of firearms in
employee’s vehicles parked on the premises.
Following from its argument that it did not violate § 45-9-55 in discharging
Cherry, Ingalls contends it is entitled to summary judgment on the remaining
claims of breach of good faith and fair dealing, negligent infliction of emotional
distress, and punitive damages. Ingalls also moves, in the alternative, for summary
judgment regarding Cherry’s claims for back pay during the period he was unable to
work due to injuries.
Summary judgment is appropriate “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 dispute of material fact means
that ‘evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th

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Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the
evidence presented by the nonmovant “‘is merely colorable, or is not significantly
probative,’ summary judgment is appropriate.” Cutting Underwater Techs. USA,
Inc. v. ENI U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting Anderson,
477 U.S. at 249). In deciding whether summary judgment is appropriate, the Court
views the evidence and inferences in the light most favorable to the nonmoving
party. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
ANALYSIS
1. The Firearms Statute
Mississippi Code § 45-9-55 was enacted in 2006 and has been applied only a
handful of times. In 2015 the Fifth Circuit certified to the Mississippi Supreme
Court the question of whether the statute created an exception to the employment
at will doctrine.2 The Mississippi Supreme Court responded that the statute did
indeed create an exception. Swindol v. Aurora Flight Scis. Corp. (Swindol II), 194
So. 3d 847, 854-55 (Miss. 2016). The Fifth Circuit concluded that “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
[v. Allied Bruce–Terminix Co., 626 So. 2d 603 (Miss. 1993)], namely, a tort action
with the same categories of relief being available.” Swindol I, 832 F.3d at 494. The

The precise question certified was “[w]hether 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 v. Aurora Flight Scis. Corp. (Swindol I), 805 F.3d 516, 523 (5th Cir. 2015),
certified question answered, 194 So. 3d 847 (Miss. 2016).
2

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Fifth Circuit subsequently remanded cases in which district courts had held that an
employer was immune from suit under § 45-9-55 and under Mississippi’s at-will
employment doctrine.
Ingalls does not contend that it is immune from Cherry’s wrongful discharge
claim. The relevancy of the Swindol opinions to this case therefore seems limited to
general background. In any event, Cherry’s wrongful discharge claim is based on
Ingalls’ alleged breach of the CBA by terminating him without cause, which has
always been a valid basis under Mississippi law. See Cmty. Care Ctr. of Aberdeen v.
Barrentine, 160 So. 3d 216, 217 (Miss. 2015) (“[W]rongful-discharge suits in
Mississippi generally must be based upon written employment contracts.”).
a) Cases Applying Mississippi Code § 45-9-55
An early post-Swindol I case is Parker v. Leaf River Cellulose, LLC, in which
the plaintiff was terminated after a firearm was discovered in his locked vehicle in
“a parking area which has no gate, fence, or security station, and which ‘is
surrounded on all sides by roadways and open fields.’” No. 2:14CV9-KS-MTP, 2017
WL 2197130, at * 1 (S.D. Miss. May 18, 2017). At the parking area entrances, the
employer had placed signs stating that the parking area was for use of employees
and visitors to the business, and all weapons were prohibited. Id. The court found
that the defendant had not shown that its parking area was restricted as described
in § 45-9-55(2), and therefore “it was not entitled to prevent the plaintiff from
storing his firearm in his locked vehicle under Mississippi law.” Id. at *4.

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In Smith v. Huntington Ingalls Incorporated, the court found questions of fact
concerning whether the same Ingalls parking areas at issue in this case are
restricted as described in § 45-9-55(2). 363 F. Supp. 3d 711 (S.D. Miss. 2019). The
plaintiff had two “speed loaders” in plain view inside his locked vehicle parked in
one of Ingalls’ parking lots at the shipyard in Pascagoula. Id. at 712. He contended
his subsequent termination was in violation of § 45-9-55. Ingalls argued that its no
firearms policy was “enforceable because it ‘restricts public access with notrespassing signs, security patrols, and closed circuit cameras monitored in a
central security station.’” Id. at 718.
The court reviewed the evidence of the parking restrictions and found that
Ingalls had not shown it was entitled to summary judgment. The court questioned
whether Ingalls’ policy infringes on the rights of its employees under state law.
“Ingalls’ policy as applied arguably has the effect of precluding its employees from
having firearms in their vehicles during [their] commutes, which in some cases may
be quite long.” Id. at 719 (citations omitted). Given that there was no screening of
vehicles entering the parking lots but might be screening of employees as they
actually entered the workplace, “the effectiveness of Ingalls’ parking lot policy in
achieving its stated goal of improving security seems questionable.” Id. Summary
judgment was denied because “at a minimum there are material fact questions for
resolution at trial regarding whether Ingalls’ policy, as applied by Ingalls in this
case, resulted in Smith’s wrongful termination.”

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In McIntyre v. Calsonic Kansei North America, Inc., No. 3:16-cv-00886-HTWLRA (S.D. Miss. Mar. 29, 2019) (ECF No. 122), the court examined a parking lot
that used “the gates, the security station, signage, security patrols, video
surveillance, a mechanical arm and, perhaps most importantly, a cyclone fence
topped with barbed wire enclosing the entire property, including parking lot 1B.”
Id. at 24. This combination made the parking lot qualify as “sufficiently ‘enclosed’
within the meaning of § 45-9-55(2).” Id. The court noted that the parking lot in
question was “the most limited or restricted parking lot that has been scrutinized to
date under the provisions of Subsection 2 of § 45-9-55. None of the other facilities
has been completely enclosed by a perimeter fence topped with barbed wire.” Id. at
27.
b) Discussion
Ingalls argues that subsection (1) of the statute bars an employer from
prohibiting possession of a firearm but only “in a locked vehicle in any parking lot,
parking garage, or other designated parking area.” Because Cherry’s vehicle was
not locked and not in a parking lot, parking garage, or other designated parking
area when the firearm was discovered, Ingalls contends that the statute did not
apply to him. Ingalls argues it would be an improper expansion of the statute to
apply it to Cherry’s vehicle.
Ingalls’ interpretation of the statute is incomplete. The entire sentence
provides:
Except as otherwise provided in subsection (2) of this section, a public
or private employer may not establish, maintain, or enforce any policy
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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 § 45-9-55(1) (emphasis added). Ingalls’ policy has the effect of
prohibiting a person from transporting or storing a weapon in his or her vehicle. It
would be impossible for an employee to arrive at one of Ingalls’ parking lots without
driving on an access road, and Ingalls’ policy makes it a terminable violation for an
employee to do so with a firearm in the vehicle. That is precisely what happened in
this case – Cherry was prohibited from transporting his firearm to a parking lot,
where it could be stored in his locked vehicle. Ingalls’ reading of subsection (1)
would make it apply only after the employee had driven through the property,
parked in a parking lot, and locked his or her vehicle, when the language plainly
applies to a policy that prevents an employee from reaching the parking lot in the
first instance. Since Ingalls’ policy has the effect of prohibiting transportation or
storage of a firearm, the policy violates § 45-9-55 unless the exception of subsection
(2) applies.
The exception provides:
A private employer may prohibit an employee from transporting or
storing a firearm in a vehicle in a parking lot, parking garage, or other
parking area the employer provides for employees to which access is
restricted or limited through the use of a gate, security station or other
means of restricting or limiting general public access onto the property.
Miss. Code. Ann. § 45-9-55(2)
Both parties request summary judgment on the issue of whether the Ingalls
parking lots qualify for this exception. Ingalls does not contend that its parking lots

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are gated, or that it has manned, controlled access to its parking lots. Ingalls
argues instead that the exception applies because its security department “uses a
number of means to restrict public access to the parking lot where Cherry testified,
he intended to park.” (Ingalls Mem. 13, ECF No. 45.) These are: 1) no-trespassing
signs; 2) constant security patrols of the parking lots and 3) a comprehensive
system of closed-circuit cameras monitored in a central security station. (Id. at 1314.)
Cherry argues that Ingalls has a fence around the perimeter of its property,
but the parking lots are not enclosed, and Ingalls “maintained no security station
and did not erect a gate or similar barrier to restrict public ingress or egress to its
parking lots.” (Cherry Mem. 14, ECF No. 43.)
The photos provided by Rick Graham, Ingalls Director for Security, show notrespassing signs at the entrances of parking lots. The parking lots are separated
from the adjacent road by a low fence consisting of one cable strung through short
posts. This minimal type of fencing also serves as delineation within the parking
areas, which are not paved and lack painted lines. (See Ingalls Mot. Ex. 1, at 49-58,
ECF No. 48-1 (ECF pagination).)
There is no material factual dispute about the condition of Ingalls’ parking
lots; the parties argue about application of the statutory language to the facts. The
Court finds the discussion in the Parker case most helpful in resolving this dispute.3

Although the analysis in Smith concerned the same evidence and similar
arguments, the court could only grant or deny Ingalls’ summary judgment motion.
It found that Ingalls could not show it met the requirements of the statute and left
3

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In Parker, the employer maintained a parking area with no gate, fence, or security
station. At the entrances to the parking area were signs stating that the parking
area was for use of employees and visitors to the business, and all weapons were
prohibited. 2017 WL 2197130, at *1. There was a security station approximately
145 feet away from the parking area. Id. at *3.
The court held that a security station removed from the parking lot entrance
did not meet the statutory requirements. “[T]he term ‘security station’ must get its
meaning from the ‘gate’ term it is associated with,” and “[t]his means that for a
security station to limit or restrict access to the employee parking area under § 459-55(2), it must limit or restrict access in a way similar to a gate.” Id. The court
determined this interpretation to be “consistent with the legislative intent of the
statute to exempt private employers who gated or otherwise restricted access to
their employees’ parking area.” Id. (citing State Farm Ins. Co. v. Gay, 526 So. 2d
534, 537 (Miss. 1988); Miss. Legislative Highlights, 2006 Sess.; Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012)).
Similarly, signs restricting access did not satisfy the statute, because they did not
constitute a physical barrier at the access points of the parking lot. Id. Once
again, the statute “require[s] restricted or limited access to the lot, similar to that of
a gate or of a security station.” Id.

that question for the jury. The result may have been different if cross-motions had
been presented, as in Parker and this case.
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This Court agrees with Parker’s interpretation of what § 45-9-55(2) requires
exempting an employer from compliance with § 45-9-55(1). Accordingly, Ingalls’
central security station and no trespassing signs do not constitute “other means of
restricting or limiting general public access” onto its parking lots in accord with the
statute. Ingalls’ constant security patrols and closed-circuit monitoring of the
parking areas also do not satisfy the statute; none of these security measures
resemble a physical barrier at the access points of a parking lot.
Because Ingalls has failed to limit or restrict access to its employee parking
lots in a manner consistent with § 45-9-55(2), it was not entitled to enforce its policy
preventing Cherry from transporting his firearm in his vehicle as he drove to the
parking lot. Ingalls’ termination of Cherry’s employment for transporting his
firearm was wrongful. Ingalls’ Motion for Summary Judgment will be denied on the
issue of liability as to Cherry’s claim of wrongful termination, and Cherry’s Motion
for Partial Summary Judgment will be granted.
2. Breach of the CBA
Ingalls moves for summary judgment on the plaintiff’s claims that Ingalls
breached the CBA by terminating Cherry’s employment and declining to arbitrate
this dispute. The parties agree that the CBA provides for arbitration of grievances
the parties are unable to resolve. Ingalls contends, however, that a limitation on
the arbitrator’s power to interpret a statute foreclosed the possibility of arbitration
in this case. The provision provides:
The Arbitrator shall have no power to interpret any State or Federal
statute when the compliance or noncompliance therewith shall be
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involved in the determination of a grievance. Any case appealed to the
Arbitrator on which the Arbitrator has no power to rule shall be
referred back to the parties without decision.
(Ingalls Mot. Ex. 9, at 3, ECF No. 44-9 (ECF pagination).) Because the Union
asserted that Cherry’s discharge violated § 45-9-55, Ingalls determined that the
arbitrator would have no power to rule and declined to arbitrate.
The Union responds that “because of the legal and judicial effort expended
thus far, Plaintiffs will not seek to compel arbitration of Cherry’s termination.”
(Pls.’ Resp. Mem. 4, ECF No. 47.) Thus the Union has withdrawn Count I of the
Complaint requesting an order requiring Ingalls to arbitrate Cherry’s termination.
(Compl. 3-5, ECF No. 1.) Ingalls is entitled to summary judgment of this claim.
Count II of the Complaint alleges that Ingalls breached the CBA by
terminating him without cause and in violation of Miss. Code § 45-9-55. Ingalls
predicates its entitlement to summary judgment of this claim on its position that
Cherry’s termination was not wrongful because it was entitled to enforce its
firearms policy. Because the Court has ruled differently, summary judgment in
Ingalls’ favor will be denied in regard to Count II.
3. Breach of the Implied Covenant of Good Faith and Fair Dealing
Ingalls’ moves for summary judgment on Cherry’s claim for breach of the
implied covenant of good faith and fair dealing on the basis that it did not violate §
45-9-55 in terminating him. Because the Court has ruled otherwise, Ingalls is not
entitled to summary judgment of this claim.

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4. Negligent Infliction of Emotional Distress
Ingalls moves for summary judgment of Cherry’s claim for negligent infliction
of emotional distress on the bases that 1) it did not violate § 45-9-55 in terminating
him; and 2) it is immune from negligence suits by employees under the Mississippi
workers compensation laws. The first basis is negated by the Court’s holding above.
Nevertheless, it is clear that claims for negligent infliction of emotional distress
against one’s employer “are barred by the Mississippi Workers’ Compensation Law,
Miss. Code §§ 71-3-1 and 71-3-9.” Walker v. Statewide Healthcare Servs., LLC, No.
3:17-CV-1035-CWR-FKB, 2018 WL 2407651, at *2 (S.D. Miss. Mar. 26, 2018).
Ingalls is entitled to summary judgment in regard to Cherry’s claim for negligent
infliction of emotional distress.
5. Punitive Damages
In determining whether the issue of punitive damages should be submitted to
a jury, a trial court decides “whether, under the totality of the circumstances and
viewing the defendant’s conduct in the aggregate, a reasonable, hypothetical trier of
fact could find either malice or gross neglect/reckless disregard.” Doe ex rel. Doe v.
Salvation Army, 835 So. 2d 76, 79 (Miss. 2003) (quotation omitted).
Cherry argues that there is evidence from which the jury could find that
Ingalls’ violation of § 45-9-55 was knowing and willful so as to justify punitive
damages. Between the statute’s enactment in 2006 and Cherry’s termination in
2016, more than twenty-five employees had been terminated for violating Ingalls’
firearms policy. Cherry argues that as a consequence Ingalls had many

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opportunities to consider whether its policy complied with the statute. Further,
applying rules of statutory interpretation should have led Ingalls to anticipate the
holding in Parker, which issued while Cherry’s request for arbitration was pending.
Ingalls argues that the jury should not be allowed to consider the issue of punitive
damages because 1) it adopted its firearm policy in good faith for the purpose of
safety; 2) § 45-9-55 is not ambiguous and Ingalls did not violate it; 3) at the time of
Cherry’s termination the language of § 45-9-55(2) had not been construed in a way
that would make Ingalls’ method of restricting access inadequate; and 4) Ingalls
relied on the advice given by its counsel after the Mississippi Supreme Court
decided Swindol.
The Court is mindful that the recovery of punitive damages is disfavored and
permitted only in extreme cases. See Life & Cas. Ins. Co. of Tenn. v. Bristow, 529
So. 2d 620, 622 (Miss. 1988) (“Mississippi law does not favor punitive damages; they
are considered an extraordinary remedy and allowed with caution and within
narrow limits.”). There is no evidence here of malicious or reckless conduct of the
part of Ingalls. The case law surrounding the application of § 45-9-55 is at best,
unsettled and evolving. And the application of § 45-9-55 to the particular policy at
issue here is open to reasonable debate, and/or review. Thus, this case does not
justify the extraordinary remedy of punitive damages. Ingalls is entitled to
summary judgment in regard to Cherry’s claim for punitive damages.
6. Back Pay After April 2017

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Ingalls moves for summary judgment to limit Cherry’s claim for back pay,
arguing that he was unable to work from April through October of 2017 because of
injuries suffered in a car accident, and would have been laid off at the end of
October 2017 with the other cablemen and not rehired in any event.
Cherry does not dispute that he cannot recover back pay for the six months
he was unable to work in 2017. However, he argues there is a factual dispute
regarding whether he could have been recalled to work in another craft. Cherry
provides deposition testimony from the business manager of the Union that all
cablemen “who wanted to” were placed in other crafts. (Mergenschoer Dep. 31-34,
ECF No. 42-5.) Ingalls disputes the testimony, contending that Cherry was not
eligible for employment in other departments, but could have applied for rehire in
2017. (Suppl. Frederic Decl. 1-2, ECF No. 52-4.) This factual dispute is for the jury
to consider. Summary judgment in Ingalls’ favor on the claim for back pay will be
denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the [42] Motion
for Partial Summary Judgment filed by Plaintiff Jeremy Cherry is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that the [44] Motion for
Summary Judgment filed by Defendant Huntington Ingalls Inc. is GRANTED IN
PART AND DENIED IN PART as set out above.
SO ORDERED AND ADJUDGED this the 2nd day of December, 2019.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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