May Employer Fire Employee Based on Employee’s Reasonable On-the-Job Self-Defense?

Generally speaking, private employers may terminate their relationship with employees for any reason, or no reason at all — that’s the “employment at will” principle. There are two main legal constraints on this. The first is contractual, for instance some sort of union contract or tenure contract. The second is statutory, such as bans on discrimination based on race, sex, religion and the like (including, in some states, sexual orientation and marital status), or less well-known statutes banning discrimination based on an employee’s vote, and in about half the states banning employer retaliation for certain kinds of employee speech and political activity. But if no such contract or statute is applicable, even conduct that is constitutionally protected against governmental retaliation — such as speech, political activity, off-the-job sexual activity, marital decisions, self-defense, and the like — are not protected against private employer retaliation.

There is, however, a third constraint, created by judges in many states: the tort of “wrongful termination in violation of public policy.” The Utah formulation of this tort, which is similar to that in many other states, bars employer retaliation against an employee for:

(i)[r]efusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
(ii) performing a public obligation, such as accepting jury duty;
(iii) exercising a legal right or privilege, such as filing a workers’ compensation claim; or
(iv) reporting to a public authority criminal activity of the employer.

The complicated category is category (iii). There are lots of legal rights and privileges that don’t trigger that category — people have the right to speak, but, absent a statute, courts generally don’t bar employers from firing employees based on their speech. (There’s one exception, Novosel v. Nationwide Ins. Co. (3d Cir. 1983), but it hasn’t been followed.) Likewise, I know of no court that has concluded, absent a statutory ban on sexual orientation or marital status discrimination, that firing an employee based on the employee’s marriage or constitutionally protected private sexual activity is tortious. On the other hand, quite a few courts have indeed accepted category (iii) as to the filing of workers’ compensation claims (which are claims against a government fund, though ones that affect the employer).

This brings us to self-defense (and in particular what I call “reasonable self-defense,” which would set aside situations where a judge or jury concludes that an employee wasn’t sufficiently threatened, could have avoided the problem without physical self-defense, used excessive force under the circumstances, and the like). Feliciano v. 7–Eleven, Inc. (W. Va. 2001) recognized “a substantial public policy exception to the at will employment doctrine whereby an employee may defend him/herself against lethal imminent danger,” though it noted that “an employer may rebut the presumption of a wrongful discharge based upon an employee’s exercise of his/her right to self-defense by demonstrating that it based the termination upon a plausible and legitimate business reason.” Cocchi v. Circuit City Stores, 2006 WL 870736 (N.D.Cal. Apr. 3, 2006), took a similar view. So did Gardner v. Loomis Armored Inc. (Wash. 1995), as to the defense of a third party. On the other hand, Johnson v. CVS Pharmacy, Inc., 2011 WL 4802952 (N.D. Cal. Oct. 11, 2011), Davis v. Stock Building Supply West, Inc., 2005 WL 1828735 (D. Utah July 29, 2005), Bagwell v. Peninsula Reg’l Med. Ctr. (Md. App. 1995), McLaughlin v. Barclays Am. Corp. (N.C. Ct. App. 1989), and Scott v. Extracorporeal, Inc. (Pa. Super. Ct. 1988)) held that there was no common-law prohibition on employers’ discharging employees based on their lawful self-defense.

Now, the federal district court in Ray v. Wal-Mart Stores, Inc. (D. Utah Oct. 9, 2013) has just certified this question as to Utah state law to the Utah Supreme Court. The Utah Supreme Court may either issue an opinion answering the question, in which case the federal judge will follow it (since federal judges are supposed to follow state court decisions about state law), or the Utah Supreme Court may decline to do so, in which case the federal judge will decide the matter for himself, drawing inferences from more general Utah state cases. And if the state supreme court does answer the question, then the result should prove quite influential.

For a related but different question of whether an employer may fire an employee based on the employee’s gun possession on property owned or controlled by the employer, compare Plona v. UPS (6th Cir. 2009) (rejecting this claim under Ohio common law, where the possession was in a parking lot leased by the employer) with Winters v. Concentra Health Servs., Inc., No. CV075012082S, 2008 WL 803134 (Conn. Super. Mar. 5, 2008) (allowing the case to go forward under Connecticut common law, where the gun possession was on employer premises but the employer allegedly didn’t have a policy prohibiting such possession). For more on constitutional protection for the right to self-defense, protection that can be asserted against a governmental restriction but that is sometimes cited in private employer cases such as this one, see this article.

Here’s an excerpt from the district court decision (some paragraph breaks added, curly braces used to note moved text):

The determination of whether a particular legal right or privilege is protected by the public policy exception requires “a balancing of competing legitimate interests: the interests of the employer to regulate the workplace environment to promote productivity, security, and similar lawful business objectives, and the interests of the employees to maximize access to their statutory and constitutional rights within the workplace.” …

The Plaintiffs cite a number of Utah constitutional provisions and state statutes in support of their argument that Utah courts would rule in their favor on this issue. For instance, the Utah Constitution provides that “[a]ll men have the inherent and inalienable right to enjoy and defend their lives and liberty.” Utah Const. art. I, § 1…. Utah’s “Stand Your Ground” law also emphasizes a fundamental right to self-defense: “A person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person from another person’s imminent use of unlawful force.” Utah Code Ann. § 76–2–402(1)(a).

Based on these and other provisions, as well as Utah judicial opinions discussing the right to self-defense, the court finds that the Plaintiffs have made a colorable argument that Utah courts would recognize the right to self-defense as an example of a clear and substantial public policy that allows an exception to the at—will employment doctrine. But the court is also [aware] … that a public policy exception based on self-defense could unreasonably restrict an employer’s ability to enforce strict workplace safety rules about fighting or physical confrontation.

And here is the district court’s discussion of the (contested) facts of the case. If the Utah Supreme Court concludes that the employee’s version of the facts would give rise to a tort claim for wrongful termination in violation of public policy, but the employer’s version of the facts would not, then the case would go to the jury.

[Incident 1:] Plaintiffs Shawn Ray, Lori Poulsen, and Gabriel Stewart were all employees of Wal–Mart Store # 1699 in Layton, Utah. Mr. Ray was an Asset Protection Associate (APA) who was hired in 2008. Ms. Poulsen was an Asset Protection Coordinator (APC) who was hired in 2003. Mr. Stewart was an Assistant Store Manager who had been employed since 1998. {Wal–Mart APAs investigate, document, and, in certain limited situations, prevent theft of store merchandise by customers and employees.} {Wal–Mart APCs oversee inventory loss, safety, and apprehensions.}

On January 13, 2011, these three Plaintiffs were involved in an incident with Trent Longton, a customer who was attempting to steal a laptop computer by concealing it in his pants. According to Wal–Mart, multiple APAs confronted Mr. Longton. A group of five of these employees, including Mr. Ray and Ms. Poulsen, escorted Mr. Longton to the asset protection office at the front of the store, where they were joined by Mr. Stewart. The Plaintiffs dispute WalMart’s use of the word “confronted.” They submit that Mr. Longton was initially cooperative with the APAs, but agree that he was taken to the asset protection office.

According to Wal–Mart, the following events occurred once Mr. Longton was inside the office. First, Mr. Longton took the laptop out of his pants and placed it on the office desk. He then stated, “You have your laptop, I am now going to leave, and I have something I am not supposed to have.” Even though Mr. Poulsen observed Mr. Longton move a gun from around his back to his coat pocket, Mr. Poulsen and three other employees (Ms. Poulsen, Mr. Stewart, and an APA who is not involved in this lawsuit) grabbed the gun away from Mr. Longton and pinned him against the wall. Meanwhile, another APA called 911, and police officers from the Layton City Police Department arrived within minutes to arrest Mr. Longton.

The Plaintiffs agree that the general sequence of events occurred as stated above, but they dispute that Mr. Longton said that he was going to leave. The Plaintiffs also emphasize that they were unable to safely withdraw or otherwise disengage from Mr. Longton because they were in a closed room.

The Plaintiffs testified that they never prevented Mr. Longton from leaving the office after he pulled his gun and that Mr. Longton could have left if he wanted to. At one point, Mr. Longton allegedly had his hand on the door handle but failed to open it, at which point he turned back into the room and pushed Mr. Stewart against the wall, thrusting the gun into Mr. Stewart’s back. During the incident, Mr. Ray stated that he began audibly praying, “Just leave, just leave, just leave[.]”Mr. Stewart testified that he was “frozen in fear,” and Ms. Poulsen stated that she had no time “to pause and stop and rationally think.”

After the incident, Wal–Mart conducted an internal investigation and terminated Mr. Ray, Ms. Poulsen, and Mr. Stewart as a result of that investigation. Wal–Mart claims that the Plaintiffs violated Wal–Mart’s Policy AP–09, which states:

If the Suspect is believed to possess a weapon, the Suspect must not be approached. If during an approach or investigation, it becomes apparent that the Suspect has a weapon or brandishes or threatens use of a weapon, all associates must disengage from the situation, withdraw to a safe position, and contact law enforcement.

If at any point the Suspect or any other [sic] involved becomes violent, disengage from the confrontation, withdraw to a safe position and contact law enforcement.

[Incident 2:] Plaintiffs Derek Holt and Eric Hunter were both employees of Wal–Mart Store # 3568 in West Valley City, Utah. Mr. Holt was an APC who was originally hired in 2005. Mr. Hunter was an APA who had been employed since 1999.

On December 24, 2010, these two Plaintiffs were involved in an incident with Maryanne Harrison, a customer who was attempting to shoplift various items that totaled about $40 in value. According to Wal–Mart, Mr. Holt and a number of other employees, including Mr. Hunter, confronted Ms. Harrison as she was about to leave the store. Ms. Harrison tried to run away, but Mr. Holt and Mr. Hunter grabbed her arms.

During the struggle that followed, Ms. Harrison pulled out a small pocketknife and yelled that she would stab them if they did not let her go. Mr. Holt and Mr. Hunter maintained their hold and, with the assistance of a customer, were able to pry the knife out of Ms. Harrison’s hand and take her into the store’s asset protection office. One of the APAs who was at the scene but not involved with the struggle called 911, and police officers from the West Valley City Police Department arrived within minutes and arrested Ms. Harrison.

The Plaintiffs emphasize that they were already in contact with Ms. Harrison when they became aware that she had a knife. Mr. Hunter did not notice what was going on until he heard a customer yelling that Ms. Harrison had a knife. Mr. Hunter testified that Ms. Harrison was trying to stick the knife into Mr. Holt’s neck. Mr. Holt stated that he “wasn’t going to let go, obviously” once he realized that Ms. Harrison had a knife to his back. Mr. Holt saw someone come and grab the knife out of Ms. Harrison’s hands, but did not realize it was a customer until later. Both Mr. Hunter and Mr. Holt testified that everything happened extremely quickly.

After the incident, Wal–Mart conducted an internal investigation and terminated Mr. Holt and Mr. Hunter as a result of that investigation. Wal–Mart submits that the Plaintiffs violated Policy AP–09, which is discussed above….

[Incident 3:] Plaintiff James Dallin was employed at Wal–Mart Store # 4689 in Cedar Hills, Utah. Mr. Dallin had been a Wal–Mart employee since 2001, and was working as an oversight Assistant Store Manager at the time of the incident. Mr. Dallin supervised an associate named Kjera Rigotti, who was married to Francisco Rigotti.

On November 26, 2010, Mr. Rigotti came to the Cedar Hills Wal–Mart and pushed Mr. Dallin, who he believed was having an affair with his wife. The parties dispute whether Mr. Dallin was speaking to Ms. Rigotti or a customer at the time that Mr. Rigotti shoved him, but it is undisputed that Mr. Rigotti grabbed Ms. Rigotti by the arm after pushing Mr. Dallin and took her down a store aisle.

Mr. Dallin believed that Ms. Rigotti was in danger and went looking for her to make sure she was okay. Mr. Dallin eventually caught up with the pair after a few minutes and shoved Mr. Rigotti into some store shelving. Mr. Dallin testified that he wanted to get Mr. Rigotti’s attention so that Mr. Rigotti would understand that the way he was treating his wife was not acceptable. Mr. Dallin then escorted Mr. Rigotti out of the store.

After the incident, Wal–Mart conducted an internal investigation and terminated Mr. Dallin as a result of that investigation. Wal–Mart alleges that Mr. Dallin violated Wal–Mart Policy PD–48, which states:

Harassment, violence, threats of violence or other similar conduct is unacceptable behavior and is a violation of company policy. Any associate who violates this policy will be disciplined up to and including termination from the company. Any associate who is terminated for violation of this policy will not be eligible for rehire.

The federal court certified the question to the Utah Supreme Court as to incidents 1 and 2; but as to incident 3, the federal court concluded that Dallin should lose even if firing based on reasonable self-defense is found to be against Utah public policy (paragraph break added):

In his encounter with Mr. Rigotti, Mr. Dallin did not attempt to remove a gun or other weapon that Mr. Rigotti was threatening to use. Instead, he affirmatively went looking for Mr. Rigotti and then shoved him into an area of store shelving.

Mr. Dallin claims that he performed this action in an attempt to protect Ms. Rigotti. But it is undisputed that several minutes elapsed between the time that Mr. Rigotti first encountered Mr. Dallin and Ms. Rigotti and the later incident with the store shelving. During this time, Mr. Dallin could have sought the assistance of other employees or emergency aid if he was genuinely concerned that Mr. Rigotti posed a substantial threat to Ms. Rigotti. A reasonable jury could not find that Mr. Dallin acted in selfdefense or in response to an immediate threat to Ms. Rigotti.