DeCarlo v. Bonus Stores, Inc.

989 So. 2d 351, 2008 WL 2762001
CourtMississippi Supreme Court
DecidedJuly 17, 2008
Docket2007-FC-02287-SCT
StatusPublished
Cited by19 cases

This text of 989 So. 2d 351 (DeCarlo v. Bonus Stores, Inc.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351, 2008 WL 2762001 (Mich. 2008).

Opinion

989 So.2d 351 (2008)

Lewis DeCARLO
v.
BONUS STORES, INC. d/b/a Bill's Dollar Stores, Inc., Jimmy A. Schafer and William Fields.

No. 2007-FC-02287-SCT.

Supreme Court of Mississippi.

July 17, 2008.

Nancy Allen Wegener, Clarksdale, Jim Waide, Tupelo, attorneys for appellant.

*352 Timothy W. Lindsay, Ridgeland, Kenneth E. Milam, Walter J. Brand, Amy C. Felder, Jackson, attorneys for appellees.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Pursuant to Mississippi Rule of Appellate Procedure 20, we have before us today the following certified questions from the United States Court of Appeals for the Fifth Circuit: "Whether the laws of Mississippi permit a retaliatory discharge claim for discharge in retaliation for reporting a co-employee's illegal acts that relate to the employer's business? If the previous question is resolved in favor of the plaintiff-appellant: whether the laws of Mississippi allow for individual liability for the tort of retaliatory discharge even if the individual defendant's participation in the discharge was in the course and scope of his employment?" DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 177 (5th Cir. 2007). Exercising our discretion pursuant to Mississippi Rule of Appellate Procedure 20(a), we render today's opinion, addressing these questions and answering the first question in the affirmative and the second question in the negative.

FACTS AND PROCEEDINGS IN THE FEDERAL DISTRICT COURT[1]

¶ 2. On January 10, 2003, Lewis DeCarlo filed a complaint in the United States District Court for the Southern District of Mississippi against various defendants, including Bonus Stores, Inc., d/b/a Bill's Dollar Stores, Inc., William Fields and Jimmy Schafer. Today's discussion, thankfully, does not require us to name all the corporate entities involved in this litigation, including corporations in the state of Delaware and the country of Iceland. DeCarlo was an employee of Bonus Stores, Inc. (Bonus), serving as its vice president of store operations from October 8, 2001, until he was terminated on May 31, 2002. During the period of time relevant to today's discussion, Jimmy Schafer was the president and chief executive officer of Bonus, which was headquartered in Columbia, Mississippi, having previously served as CEO of Bonus Stores of Florida, Inc. (Bonus Florida). Bonus was formed as a Delaware corporation in order to purchase Bill's Dollar Stores out of bankruptcy. While Schafer was serving as CEO of Bonus Florida, he started another company known as Retail Services, Inc. (Retail Services), in which he owned a fifty-percent interest, for the purpose of buying old fixtures from Wal-Mart and then refurbishing and selling them to Bonus Florida. Once Schafer moved to Mississippi to serve as CEO of Bonus, Retail Services continued the same business by selling the refurbished fixtures to Bonus.

¶ 3. In April 2002 after Schafer expressed concerns about Bonus's profitability, DeCarlo commenced an investigation in an effort to determine the reasons for the disappointing profit and loss statements; however, at the time he commenced this investigation, DeCarlo was unaware of the existence of the relationship between Retail Services and Bonus, as well as Schafer's involvement with Retail Services. Not surprisingly, during the course of his investigation, DeCarlo learned of the relationship between Bonus and Retail Services and Schafer's connection with Retail Services. Also, DeCarlo's investigation raised suspicions that Retail Services may have been billing Bonus for fixtures which were never delivered. DeCarlo reported his findings to Guy Heyl, Bonus's chief financial officer and secretary to the board of directors. According to DeCarlo, after *353 he reported his findings, Heyl told him to "lay low" and that he (Heyl) would investigate the matter further. DeCarlo asserts that immediately after reporting to Heyl, he was subjected to repeated harassment and retaliation by Bonus, through the actions of Schafer. DeCarlo likewise claims that he reported Schafer's conduct to several board members in May 2002, and that on May 31, 2002, Schafer, at the direction of Bonus's board of directors, terminated DeCarlo's employment with Bonus. DeCarlo further asserts that after his termination, he was subjected to harassment by William Fields, a member of Bonus's Board of Directors, in that Fields tried through intimidation to force DeCarlo to settle his employment issues, failing which he (Fields) threatened to interfere with DeCarlo's future attempts to secure employment.[2]

¶ 4. In due course, the United States District Court for the Southern District of Mississippi, Judge Keith Starrett presiding, was confronted with separate motions for summary judgment filed by Bonus, Schafer, and Fields. DeCarlo v. Bonus Stores, Inc., 2006 WL 1328890 at *7, 2006 U.S. Dist. LEXIS 47132, *6 (S.D.Miss. May 12, 2006). After discussing Mississippi's employment-at-will doctrine, and this Court's decision in McArn v. Allied Bruce-Terminix Co., Inc., 626 So.2d 603, 607 (Miss.1993) (carving out exceptions to our employment-at-will law where an employee is terminated for refusing to participate in an illegal act or for reporting the employer's illegal acts to the employer or anyone else), the district court found that while Schafer's suspicious activities, as described by DeCarlo and if proven, amounted to illegal activity, the McArn exceptions applied only to reporting illegal acts of the employer as opposed to illegal acts "of a co-employee, not attributable to the employer." (DeCarlo v. Bonus Stores, Inc., 2006 WL 1328890 at *6, 2006 U.S. Dist. LEXIS 47132, **10-12, **15-16).

¶ 5. Thus, the district court granted the separate motions for summary judgment of Bonus, Schafer, and Fields and entered a final judgment dismissing DeCarlo's complaint with prejudice. Id. at *7, 2006 U.S. Dist. LEXIS 47132, *20. Aggrieved by the district court's judgment of dismissal, DeCarlo appealed to the United States Court of Appeals for the Fifth Circuit.

PROCEEDINGS IN THE FIFTH CIRCUIT COURT OF APPEALS

¶ 6. DeCarlo argued before the Fifth Circuit Court of Appeals, and that court agreed, that absent from the district court's analysis of the issues was discussion of this Court's decisions in Willard v. Paracelsus Health Care Corp., 681 So.2d 539 (Miss.1996) (Willard I), and Paracelsus Health Care Corp. v. Willard, 754 So.2d 437 (Miss.1999) (Willard II), which "arguably extends McArn to a factual situation very similar to this case: a suit against both the company and the individual supervisor over the alleged retaliatory termination for reporting illegal activities." DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 175 (5th Cir.2007). In discussing, inter alia, Willard I and Willard II, as well as McCrory v. Wal Mart Stores, Inc., 755 So.2d 1141 (Miss.Ct.App.1999); Brandon v. Claiborne County, 828 So.2d 202 (Miss. Ct.App.2001); Senseney v. Mississippi Power Co., 914 So.2d 1225 (Miss.Ct.App. 2005); and Jones v. Fluor Daniel Services *354 Corp., 959 So.2d 1044 (Miss.2007); the Fifth Circuit Court of Appeals concluded that McArn arguably could protect an employee such as DeCarlo. DeCarlo, 512 F.3d at 176.[3]

¶ 7.

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Bluebook (online)
989 So. 2d 351, 2008 WL 2762001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decarlo-v-bonus-stores-inc-miss-2008.