morning it's the nd day of our sitting judge king is participating from houston and she'll be able to ask questions through the monitor and to my left is judge duncan and won't go ahead and call the st case nine employer to remove or otherwise subject an ambush subject an employee to adverse employment action as a result of jury se you is the question just that and i will benefit from you teasing out mississippi law but it seemed to me that you had three theories one a private cause of action in the statute  macaron based theory in terms of of refusing to do an illegal act and then rd a swindle argument that you have a claim this statute has its own remedial mechanism that the argument would be that your client should have gone back to the judge who presided over the trial and said hold them in contempt as well and there's and their interpretation is just the opposite of mississippi civil remedy it doesn't indicate that there's no remedy or the only remedy is a criminal case i don't know how much this has to do with it but to me it would be absurd as not a single case for anybody to have been prosecuted under that statute to do that not a single  provided in state statute and in both cases fortified by the state constitutions the course not and he does a lot of talk about you haven't shown any legislative intent it says the courts implied remedy and there's language in there that says they make that same argument of i said well the legislature hasn't provided a remedy and damages and they say the supreme court in swindle said well they missed the point that the judiciary created the employment will doctrine so we therefore have the authority to modify it and we modified by saying that if he was doing but i think an absence of anything else at that same that would be a substantial contributing tells us you recommended see another raise and i would have to believe you are the and this this gets into the facts which are really not at issue here but the council spent a lot of time talking about facts if this guy has a terrible employee causes like so much as a couple things i'd like to point out they had fifty hour work weeks so it was in the interest of the employer that they save on overtime labor and henderson said on page three hundred and thirty six dollars that she would allow him to leave in her discretion to save time that terminations notice if you look at the specifics of why they terminated several times or not to be in light therefore laving her and she test of some of the discussion in swindle suggest that maybe it's a public policy case and it's not it's a statutory interpretation case of mr simmons st claim in this case is a statutory claim that he was terminated because he served on a jury and his claim is that he has a private cause of action under the the relevance that you to implement jury duty statute his nd claim is the mississippi public policy argument under mc under swindle an extension of my cars is what mr simmons argues and that is based on his claim that he was he was told to lie to avoid jury service and that he refused that suggestion by mr henderson and was terminated as a result so the st claim is that he was terminated because he served on a jury and that claim under the statute seven claim is that he was terminated because he refused requests to lie and that's his public policy claim well it seems to me certainly the emphasis today in argument and then going back i agree with your characterization that the statutory claims in the public policy are a little bit unclear a little hard to disaggregate maybe that's just because swindle is so recent but as he articulated today and i thought fairly presented in his complain the swindle statutory claim is distinct from the argument that there's a private cause of action and what he's pressing primarily is that swindle just applies full on the logic of swindle mississippi says you can't fire someone for possessing a gun mississipi says you can't fire someone for being in a jury logic's the dentical the distinction and it's an important one is that the statute that the swindle court was pointed out one of your questions did not have its own remedial provisions so the remedial provision under the statute issue in this case provides that any violation of the section shall be deemed interference with the administration of justice and shall be punishable as such the statute in question in swindle with as mr wade explained an employer's prohibition of employee storing or the notion that be a private cause of action but i don't see how it distinguishes swindle because the employee in both cases is fired and loses their job so the one that had a gun gets to make a damages claim well she's out of a job but your argument would be here you won't your only recourse is to protect the court to contest but you couldn't get damages wrecked and the reason the reason is there is a well settled wad of cases in mississippi that says that mere violation of a statute or all due respect that you are conflating the two theories because judging ensign is talking about the swindle not the implied private cause of action so what well let me ask it this way so my understanding of swindle is that there is at will employment in mississippi except for reasons independently declared legally impermissible by the mississippi legislature that's the language that swindle uses i guess that's from a con and the court in swindle looked at four thousand and fifty five dollars whatever that number is the gun statute and basically said look the legislature made it in permissible legally for an employer to terminate an employee for keeping a gun in his car or there abouts and so it found an exception to the at will employment allowing a lawsuit essentially so to explain to me this why doesn't this case very simple we look at th and thirty five we find that the legislature also made it legally and permissible for an employer to subject an employee to adverse employment action as a result of jury service why isn't this just a simple fact the purpose of this decision is when will the court review the statute and found a private cause of action based on the exclusionary language which is 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 and so the court looked at that provision and they said we wouldn't be reasonable it would be completely  render the prescriptive provision of the statute in that case meaningless if we didn't find a private cause of action there was no other remedy in that case of the court looked at it and they said we find that there is a private cause of action here because there is no remedy and the way that we read this limitation on liability we read it to establish a private cause of action under the statute so that it did interpret the statute and found that the legislature intended for there to be a private cause of action based on the plain language of the statute the statute what's the remedy for mr simmons so how does but how does contempt get him anything for losing his job ok so for instance had mr simmons gone to the corps reported that he had been terminated as a result of his jury service the court would have held a hearing presumably found help the court imploring content held a hearing if the court determined that simmons had in fact been terminated as a result of his jury service it could have for instance required reinstatement and payment of back as a remedy that is a civil contempt remedy that would have benefited mr simmons he would have been paid his back wages and put back to work presumably much more quickly than pursuing a private cause of action so he's not without a remedy here that those that civil contempt but mr you know again you know he sees you works this taco bell place he's supposed to know that he's got to go back to the judge the bugs i did over know he retained counsel i mean when he retained counsel in this lawsuit was filed they went and they read the statute the statute of says any violation of this section shall be deemed contempt of court and therefore they knew the remedy so whether mr simmons independently was able to can discern of the remedies are relevant he had counsel and if if it isn't persuasive to us that swindle doesn't sort of map on exactly do you still contend that there is no disputed issue of fact on a swindle theory of wrongful distort well there's no dispute issue of fact  district court's decision should be affirmed in as much as the undisputed testimony in the record is that miss banger the decision maker had made the decision to terminate mr simmons prior to his jury service so yes to the extent that she made that decision prior to his service on the jury or any allege request or refusal that he lied to avoid jury service that is there still was no disagrees nable jerk could think that's pretax right if if if the reason  that company is saying they fired him was that he was tardy and they decided that way before but they gave you no warning and the allegation is other people were tardy and he was twenty how many times twenty seven but they never ever did any thing until after he return said to him i'm not going to accommodate you at all and he alleges that she even told him to lie and she never indicated the tardiness was any flaw at all and she then recommends that he be fired and she's there when he's fired and it all happens right when he returns from the service that he did she didn't want to go to well remember the statutory claim is based on his jury service the recommendation to terminate was made well in advance of this jury service and the decision was made before he served on the job that's the allegation of the two of them correct and the only evidence to the contrary is time and there's there's no evidence busy in the record that suggests any dispute with regard to the to separate claim altogether so mr wade in his argument suggested that because window authorized a private cause of action under a different statute with a different remedial provision it abrogates his argument essentially is that it abrogates the requirement under mr peel all the legislature created a private cause of action and we know that not to be the case here in fact for five years five consecutive years after the statute in question this case was passed the mississippi legislature proposed amendments that would've expressly given mr simmons a protocols of action and on each of those occasions those amendments were not passed now mr simmons that mr simmons has not himself offered any affirmative evidence he bears the burden of the staff legislative intent and he has not himself offered any evidence of the legislature's intent to create a private cause of action under the statute  he argues with regard to his claim that we should disregard that those prior failed amendments he argues mississippi gaming commission versus imperial palace which was a case in which the court considered prior failed legislative amendments and alternately determined that they didn't resolve them begin in the statute and weren't useful so in other words they couldn't discern from the so the mississippi supreme court seems to see that there's a different wrongful discharge toward and at that point this is abuse legislatures not doing anything because there it is ok but  the court's holding in swindle didn't go that far and it was limited to the facts of the case an interpretation of us to that one gun possession that absolutely except for the remedial argument that seems a little strange to say  as he characterized it this is just in a special for the n r a well it's holding was limited to that particular statute and its interpretation of that statute it looked at the statutory text and it determined that there was a civil cause of action under the text the fact that it protects a right reference and constitutions are relevant you still have to show that there was legislative intent and what the court did in swindle was it went back and looked to the statute colloquially known as the trunks law and it went back and looked at the guns and trumps law and it said based on the language of this limitation in the prescriptive provision it would not make sense to interpret the statute not to have a private cause of action there's no now with regard to the public policy plan the key issue in the only real issue here is whether the decision maker had knowledge of the alleged request that mr s avoid jury duty or his refusal to do so and mr simmons has put forth no evidence whatsoever to suggest that there was any knowledge and the cases talk about generalize versus specific discussions between the decision maker and others who may have had knowledge and there are some other categories of of types of evidence one of which is timing of course but mr simmons has produced no evidence at all henderson and mr anderson's along with knowledge had any discussion specific generalized any discussion about the terminations decision about the circumstances underlying determination about simmons performance no conversations whatsoever in fact their theory of the case is that because mr henderson and miss bangor were both at the terminations meeting and both signed the termination document that a journey can infer from those facts alone there's not any evidence that there was any discussion from those facts alone that miss bangor had knowledge and he cites a handful of cases and i'll go through him very quickly because each is distinguishable and i think they bear some mention the how this court has handled similar situations regarding decision maker knowledge the st case is a case called  agreed with another city employee during the course of an investigation that it may be a good idea for the employer to engage  outside employment consultant to interview the employee and so there was a discussion about the circumstances surrounding the alleged retaliation and the fact that it may be good to have a consultant some outside rd party come in  and interview the employee and the court found on that basis that a jury could infer that the decision maker had knowledge similarly and robinson the decision maker had met with attorneys in preparation for the c witness interviews and those attorneys had attended interviews that involved the complainant and others and the court found relying in part on those meetings with the attorneys that it could be reasonable to infer the jury could reasonably infer that the decision maker had been told or had gained knowledge of the testimony of the plane m care it's also distinguishable for the same reason there's an evidence of a specific conversation in that case there was evidence that the decision maker and another employee with evidence i'm sorry with knowledge specifically discussed plans performance and terminations before the termination decision each of those cases is distinguishable at least because there was some specific conversation with the decision maker and somebody w knowledge of the protected activity has a say at least because in robinson there was also some evidence that the decision maker had changed his treatment of the plaintiff after having held it so my own the argument as to the illegal act exception that you're making now is that there are no facts suggesting henderson influence banger or is your argument that mississippi doesn't recognize the cat's paw theory in this context ok so and i want to keep the cats paul theory and the argument that the employee employer decision maker did not have knowledge separate so on one hand our argument is that the decision maker did not have any knowledge there's no evidence whatsoever decision maker had knowledge that he refused to lie and he refused to lie that's a public policy claim the cat's paw three separate and it's in a political here the cat's paw theory is that mr henderson somehow influence the decision i agree there's no evidence of any influence whatsoever but to the extent that they rely on ms henderson's recommendation to bangor that she terminators employment it's under speeded that recommendation they had the opportunity to depose or and to ask that question they did not ask that question i mean excuse me simmons did reach out to get assistance from bang bang or knew about the summons correct absolutely absolutely there's no dispute the banger was aware of the jury service at that point the question the question as it relates to the public policy claim is did banger know that he had been asked to live or that he would refuse to lie and she had no knowledge of that one interpretation finding that the legislature on the one hand specifically precluded employers busy from prohibiting flowers and sad locked vehicles on their premises but then come on the other hand granted employers complete immunity from damages then a violation of that war will end up applying to more and more situations are there have you have you look through the code and are there a lot of prohibitions on employment that then by the logic a swindle would mean the at will situation of mississippi actually has a pretty substantial number has his testimony well you gotta believe henderson that the thing came before i want to emphasize why i don't think that the jury was quote required to believe in the words of roy just henderson's testimony st when she's giving her deposition both lawyers are they're  criticize the lawyer where you didn't exactly ask about the th but then to come back after the deposition and submit an affidavit and say and nearly a year later see some it's an affidavit and says actually it was after i made the recommendation before the jury service there's no documentation no way mail no writing she just says that and an affidavit we can't cross examine cross examination is very important and in the face of so you know you're nice i mean i guess he's saying all there is to and say well i was i was committing a crime when that soon as i took off on jury duty and i told him i had to have she gave a specific reason i had to have him for that shift he was we had to have all four managers and i had had so i told him to look i mean she didn't say i told him to lie but she said he was i'm so i believe this is his testimony that her rationale a rationale was that i got a heavy for the shift and therefore a lot of if you thank you thank