Community Care Center of Aberdeen v. Mary Barrentine

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2014-IA-00436-SCT

COMMUNITY CARE CENTER OF ABERDEEN

v.

MARY ARNETTA BARRENTINE

DATE OF JUDGMENT: 03/13/2014
TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS
TRIAL COURT ATTORNEYS: JIM WAIDE
RON L. WOODRUFF
JOHN L. MAXEY, II
S. MARK WANN
KELLY HOLLINGSWORTH STRINGER
COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN L. MAXEY, II
S. MARK WANN
KELLY HOLLINGSWORTH STRINGER
ATTORNEYS FOR APPELLEE: JIM WAIDE
RON L. WOODRUFF
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED AND REMANDED - 03/26/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE DICKINSON AND RANDOLPH, P.JJ., AND LAMAR, J.

DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1. A nursing home employee filed a wrongful-discharge suit more than a year after she

claims she was fired for reporting suspected patient abuse. Although wrongful-discharge

suits in Mississippi generally must be based upon written employment contracts, she claims

her suit falls under the public-policy exceptions this Court announced in McArn v. Allied
Bruce-Terminix Co., Inc.1 The issue presented is whether—as she argues—her wrongful-

discharge suit is governed by the general three-year statute of limitations governing torts,2

or—as the nursing home argues—it is governed by the one-year statute of limitations

applicable to unwritten employment contracts.3 The trial court held McArn wrongful-

discharge claims are tort actions, subject to the general three-year statute of limitations. We

agree.

FACTS AND PROCEDURAL HISTORY

¶2. On November 15, 2012, Mary Barrentine sued Community Care Center of Aberdeen

“for discharge in violation of public policy,” alleging she was wrongfully discharged from

her nursing position on April 29, 2011, after she reported suspected nursing-home patient

abuse to the State Ombudsman and Community Care Center’s corporate compliance officer.

Community Care Center responded with a motion for summary judgment, arguing that

Barrentine’s claims were based upon an unwritten employment contract and, thus, barred by

Section 15-1-29’s one-year statute of limitations. Barrentine opposed the motion, arguing

that her suit sounded in tort and was governed by Section 15-1-49’s three-year statute of

limitations.

¶3. The trial court denied Community Care Center’s motion for summary judgment,

finding “that the statute of limitations for a cause of action of wrongful discharge in violation

1
See McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993).
2
See Miss. Code Ann. § 15-1-49 (Rev. 2012).
3
See Miss. Code Ann. § 15-1-29 (Rev. 2012).

2
of Mississippi’s [public] policy is three (3) years.” Because this is an issue of first

impression, we granted Community Care Center’s Petition for Permission to File

Interlocutory Appeal.

ANALYSIS

¶4. We review a trial court’s denial of a motion for summary judgment de novo, because

the “[a]pplication of a statute of limitation is a question of law to which a de novo standard

. . . applies.”4

A. McArn Wrongful Discharge in Violation of Public Policy Claims

¶5. Mississippi rigidly follows the common law employment-at-will principle, that is, “a

contract for employment for an indefinite period may be terminated at the will of either party,

whether the discharge is for any reason or no reason at all.”5 But in McArn, this Court

created two independent tort actions based on “a narrow public policy exception to the

employment at will doctrine.”6

¶6. In McArn, a former termite-control employee sued Terminix for wrongful discharge

after he allegedly was fired for telling the State Department of Agriculture and other

customers that their homes and businesses had not been properly treated.7 We held that “an

4
Knight v. Knight, 85 So. 3d 832, 835 (Miss. 2012) (quoting Sarris v. Smith, 782
So. 2d 721, 723 (Miss. 2001)).
5
Buchanan v. Ameristar Casino Vicksburg, Inc., 852 So. 2d 25, 26 (Miss. 2003)
(citing McArn, 626 So. 2d at 606).
6
McArn, 626 So. 2d at 607.
7
Id. at 604-06.

3
employee who refuses to participate in an illegal act . . . shall not be barred by the common

law rule of employment at will from bringing an action in tort for damages against his

employer.”8 We also held that “an employee who is discharged for reporting illegal acts of

his employer to the employer or anyone else is not barred by the employment at will doctrine

from bringing action in tort for damages against his employer.”9 We described these torts

as “public policy exceptions to the age old common law rule of employment at will,” and we

held that “[t]hese exceptions apply even where there is ‘privately made law’ governing the

relationship, where the illegal activity either declined by the employee or reported by him

affects third parties among the general public, though they are not parties to the lawsuit.”10

¶7. In Willard v. Parcelsus Health Care Corp., (Willard I), this Court again recognized

“[t]he exception to the employment-at-will doctrine sounds in tort, and we recognize, as the

majority of jurisdictions do, that a party is entitled to pursue all remedies available in tort,

including punitive damages.”11 In Willard I, community hospital employees sued the

hospital’s parent company for wrongful discharge after they allegedly were fired for

reporting illegal activities of another hospital employee.12

8
Id. at 607.
9
Id. Barrentine’s claim for “wrongful discharge in violation of public policy” stems
from this second tort created in McArn, i.e., she allegedly was fired for reporting suspected
elder abuse.
10
Id.
11
Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 542 (Miss. 1996).
12
Id. at 540.

4
¶8. We now must address an unfortunate ambiguity created in Willard II, wherein this

Court remarked that “[t]he basis of the action in this case is breach of the employment

contract.”13 We explained that

[r]etaliatory discharge, found by this Court to be an independent tort in Willard
I, is but another form of tortious breach of contract. Describing retaliatory
discharge as an independent tort does not mean that the underlying cause of
action is not one for breach of contract.14

¶9. The Court in Willard II—citing two Michigan state cases and a Northern District of

Indiana case—stated that “several courts have found that an action for retaliatory discharge

is a contract action.”15 This was an erroneous conclusion.

¶10. The Supreme Court of Michigan in Phillips v. Butterball Farms Co., Inc.—a case

cited approvingly by this Court in Willard II—actually held that a claim for retaliatory

discharge of an employee who files a workers’ compensation claim is grounded in tort law.16

In fact, the court specifically rejected the defendant’s argument that such a claim was based

on contract and held that “[t]he duty not to retaliate against an employee for filing a workers’

compensation claim arises independently from the employment contract.”17

¶11. The Michigan Supreme Court’s decision in Phillips undermined the Michigan Court

of Appeals’ holding in Mourad v. Automobile Club Insurance Association, that retaliatory

13
Paracelsus Health Care Corp. v. Willard, 754 So. 2d 437, 442 (Miss. 1999).
14
Id.
15
Id.
16
Phillips v. Butterball Farms Co., Inc., 531 N.W.2d 144, 147 (Mich. 1995).
17
Id.

5
demotion is based on a breach of a just-cause contract.18 Mourad was the other Michigan

case cited approvingly by this Court in Willard II.

¶12. Today, we clear up the ambiguity by affirming our decision in McArn that claims of

wrongful discharge in violation of public policy are independent tort actions. Our holding

today is in concert with the majority view in this country.19

18
Mourad v. Auto. Club Ins. Ass’n, 465 N.W.2d 395, 401 (Mich Ct. App. 1991).
19
See Rose v. Anderson Hay & Grain Co., 335 P.3d 440, 442 (Wash. Ct. App. 2014)
(noting that common law claim of wrongful discharge in violation of public policy is a tort
claim); Davis v. Cmty. Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709 (D.C.
2013) (quoting Carl v. Children’s Hosp., 702 A.2d 159, 159-60 (D.C. 1997) (“[T]he
common law tort of wrongful discharge in violation of public policy . . . creates a ‘very
narrow’ exception to the general rule that at-will employees may be discharged at any time
for any reason.”); Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 659-60 (Tex. 2012)
(holding that wrongful termination claims where an employee is fired for refusing to
perform an illegal act sound in tort); VanBuren v. Grubb, 733 S.E.2d 919, 923 (Va. 2012)
(“Wrongful discharge, however, is an action sounding in tort. While there are components
of a contractual relationship, wrongful discharge remains a tort and tort principles must
apply.”); Campbell v. Husky Hogs, LLC, 255 P.3d 1, 9 (Kan. 2011) (“Retaliatory discharge
is a tort.”); Wendeln v. The Beatrice Manor, Inc., 712 N.W.2d 226, 238 (Neb. 2006) (“We
agree that a public policy-based retaliatory discharge claim is based in tort. Accordingly,
such a claim is governed by the general 4-year statute of limitations period . . . .”); Porter
v. City of Manchester, 849 A.2d 103, 119 (N.H. 2004) (“[W]e have held that wrongful
termination is a cause of action in tort . . . .”); Chandler v. Kenyan, 862 So. 2d 1182, 1185
(La. Ct. App. 2d Cir. 2003) (citing Jones v. Orleans Parish Sch. Bd., 688 F.2d 342 (5th Cir.
1982)) (“An action for ‘wrongful discharge’ in an ‘at-will’ employment relationship sounds
in tort and as such is subject to the one-year prescriptive period for delictual [i.e., tort]
actions . . . .”); Boone v. Frontier Refining, Inc., 987 P.2d 681, 688 (Wyo. 1999)
(characterizing claim for retaliatory discharge in violation of public policy as a tort cause of
action); Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1033 (Cal. 1994) (citing Gantt
v. Sentry Ins., 824 P.2d 680, 684 (Cal. 1992)) (“Tort claims for wrongful discharge typically
arise when an employer retaliates against an employee for ‘(1) refusing to violate a statute,
(2) performing a statutory obligation, (3) exercising a statutory right or privilege, or (4)
reporting an alleged violation of a statute of public importance.’”); Painter v. Graley, 639
N.E.2d 51,55 (Ohio 1994) (citing Greeley v. Miami Valley Maint. Contractors, Inc., 551
N.E.2d 981 (Ohio 1990)) (recognizing a cause of action in tort for wrongful discharge in
violation of public policy); Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 102 (Colo.

6
¶13. Because McArn wrongful-discharge claims are independent tort actions, we must

necessarily reject Community Care Center’s argument that such claims are based on an

unwritten employment contract. They are not. As stated by one legal authority, “[c]ourts

holding that a cause of action for wrongful discharge in violation of public policy sounds in

tort recognize that the duties breached by the employers in the cases were not part of any

1992) (“[W]e hold that Lorenz’s cause of action [for wrongful discharge] accrued on the
date of his actual discharge and that his tort claim was filed within the applicable statute of
limitations.”); Peterson v. Browning, 832 P.2d 1280, 1284 (Utah 1992) (“Of those courts
recognizing the public policy exception to the at-will doctrine, the overwhelming majority
adopt the tort theory.”); Amos v. Oakdale Knitting Co., 416 S.E.2d 166, 173 (N.C. 1992)
(recognizing that a plaintiff may seek tort remedies for wrongful discharge based on the
public policy exception to the employment at-will doctrine); D’Angelo v. Gardner, 819 P.2d
206, 212 (Nev. 1991) (“An employer commits a tortious discharge by terminating an
employee for reasons which violate public policy.”); Burk v. K-Mart Corp., 770 P.2d 24,
28 (Okla. 1989) (recognizing that the public policy exception to the at-will termination rule
creates a cause of action in tort); McClanahan v. Remington Freight Lines, Inc., 517
N.E.2d 390, 392 (Ind. 1988) (“A common plea by discharged plaintiffs is that an employer
should be subjected to tort liability if his firing of the employee contravenes a well-defined
public policy.”); Springer v. Weeks & Leo Co., Inc., 429 N.W.2d 558, 559 (Iowa 1988)
(creating a cause of action for tortious termination of employment at will where employment
is terminated for reasons contrary to public policy); Boudar v. E.G. & G., Inc., 742 P.2d
491, 498 (N.M. 1987) (recognizing a cause of action in tort based upon discharge of an
employee in contravention of a clear mandate of public policy); Price v. Carmack Datsun,
Inc., 485 N.E.2d 359, 361 (Ill. 1985) (citing Palmateer v. Int’l Harvester Co., 421 N.E.2d
876 (Ill. 1981)) (describing the “tort” of retaliatory discharge in violation of public policy);
Parnar v. Americana Hotels, Inc., 652 P.2d 625, 631 (Haw. 1982) (“[A]n employer may
be held liable in tort where his discharge of an employee violates a clear mandate of public
policy.”); Adler v. Am. Standard Corp., 432 A.2d 464, 468 (Md. 1981) (“A majority of the
courts expressly recognizing a cause of action for wrongful discharge have treated the
employees’ claims as tort actions.”); Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 512 (N.J.
1980) (“An employee who is wrongfully discharged may maintain a cause of action in
contract or tort or both.”).

7
contract between the employee and the employer but were duties imposed by law outside the

contract.”20

¶14. A McArn claim alleging wrongful discharge in violation of public policy is based on

an employer’s duty not to thwart the public interest by terminating employees for speaking

the truth.21 Having found that McArn claims are tort-based actions, we next analyze which

statute of limitations applies to such claims.

B. Applicable Statute of Limitations

¶15. We have considered which statute of limitations applies in other employment-related

disputes. For instance, in Avery, Shanks & Waltman, Inc. v. Giordano-Kirby Insurance

Agency, Inc., a pre-McArn case, this Court overruled a trial court’s dismissal of a claim by

one corporation against another under Section 15-1-29’s one-year statute of limitations for

breach of oral employment contracts.22 This Court held that the trial court erred in dismissing

the action under the one-year statute of limitations, because “[t]his was not a suit by

employees to obtain reinstatement, or damages for wrongful termination of employment.”23

¶16. Relying on Avery, Shanks & Waltman, Inc., the United States Court of Appeals for

the Fifth Circuit found in White v. United Parcel Service that this Court had “implicitly

20
82 Am. Jur. 2d Wrongful Discharge § 58 (2013).
21
See McArn, 626 So. 2d at 607 (“[A]n employee who is discharged for reporting
illegal acts of his employer to the employer or anyone else is not barred by the employment
at will doctrine from bringing action in tort for damages against his employer.”).
22
Avery, Shanks & Waltman, Inc. v. Giordano-Kirby Ins. Agency, Inc., 404 So. 2d
1036, 1037 (Miss. 1981).
23
Id. at 1037-38.

8
recognized” that Section 15-1-29 “applied to a ‘suit by employees to obtain reinstatement,

or damages for wrongful termination of employment.’”24 However, the issue in White

concerned only whether the one-year statute of limitations in Section 15-1-29 applied to 42

U.S.C. Section 1981 employment-discrimination claims.25 The Fifth Circuit concluded that

the statute of limitations governing claims for breach of an unwritten employment contract

should apply over the then six-year catch-all statute of limitations in Section 15-1-49.26

However, the United States Supreme Court ultimately overruled White and held that state

statutes of limitations governing personal injury actions were more appropriate for Section

1981 employment-discrimination claims.27

¶17. And in Michael S. Fawer v. Evans, this Court—in answering a certified question

from the Fifth Circuit—found that Section 15-1-29’s one-year statute of limitations did not

apply to a contract dispute between an attorney and his former client.28 The Court held that

“[t]he phrase ‘actions on unwritten contracts of employment’ in [Section 15-1-29], applies

only to traditional employer-employee situations.”29 So “an attorney’s action against his

24
White v. United Parcel Serv., 692 F.2d 1, 3 (5th Cir. 1982) (per curiam).
25
Id. at 1-2.
26
Id. at 3.
27
Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 107 S. Ct. 2617, 2621 (1987),
superseded by statute, 28 U.S.C. § 1658, as recognized in Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 382, 124 S. Ct. 1836, 1845 (2004) (holding that congressionally created
four-year statute of limitations applied to employment-discrimination cases).
28
Michael S. Fawer v. Evans, 627 So. 2d 829, 833 (Miss. 1983).
29
Id.

9
client for fees for professional legal services rendered by the attorney to the client on open

account pursuant to an unwritten agreement is subject to the three-year limitations period .

. . not the one-year limitation period . . . .”30

¶18. The Court of Appeals, at times, has held that the Section 15-1-29’s one-year statute

of limitations applies to McArn wrongful-discharge claims, and at other times, has held that

the Section 15-1-49’s three-year statute of limitations applies.31 Both the northern and

southern federal district courts consistently have applied the one-year statute of limitations

in Section 15-1-29.32

¶19. The parties have argued that this Court’s opinions in Sloan v. Taylor Machinery

Co.,33 and Bobbitt v. Orchard, Ltd.,34 are relevant to determining the applicable statute of

30
Id.
31
Compare McCool v. Coahoma Opportunities, Inc., 45 So. 3d 711, 714 (Miss. Ct.
App. 2010) (holding that an employee’s action against her employer for breach of contract
was based on the one-year statute of limitations in Section 15-1-29), with Wertz v. Ingalls
Shipbuilding Inc., 790 So. 2d 841, 845 (Miss. Ct. App. 2000) (citing Nichols v. Tri-State
Brick & Tile, 608 So. 2d 324, 332-33 (Miss. 1992)) (“Pursuant to section 15-1-49, the statute
of limitations for claims of . . . wrongful discharge, [the plaintiff] had three years within
which to file his claims.”).
32
See Davis v. Bank of Am. Corp., No. 1:10-CV-23, 2013 WL 666903, at *2 (S.D.
Miss. Feb. 22, 2013) (“Though it does not appear that Plaintiff was employed by Coldata,
any state claim for wrongful termination would be subject to a one year limitations period.”);
Garrett-Greer v. Key Staff Source, Inc., No. 1:08-CV-229-SA-DAS, 2010 WL 1848898, at
*5 (N.D. Miss. May 6, 2010) (dismissing a plaintiff’s wrongful termination claim as time-
barred under the one-year statute of limitations); Davis v. Belk Stores Servs., Inc., No.
1:07CV537-LG-JMR, 2009 WL 44204, at *3 (S.D. Miss. Jan. 6, 2009) (same).
33
Sloan v. Taylor Mach. Co., 501 So. 2d 409, 411 (Miss. 1987).
34
Bobbitt v. Orchard, Ltd., 603 So. 2d 356, 361 (Miss. 1992).

10
limitations. However, those cases address only whether an employee handbook can form the

basis of a written employment contract. That issue is not before us.

¶20. So, to summarize our holdings, in Avery, Shanks & Waltman, Inc., this Court tacitly

acknowledged that Section 15-1-29 applied to suits “to obtain reinstatement, or damages for

wrongful termination of employment.”35 And the Fifth Circuit recognized this in White.36

Finally, in Michael S. Fawer, we held that the one-year statute of limitations applies to

“traditional employer-employee situations.”37 With these principles in mind, we now will

attempt to reconcile our cases.

¶21. Although we said in Avery, Shanks & Waltman, Inc. that a claim based on wrongful

termination was governed by the one-year statute of limitations in Section 15-1-29, we had

not yet decided McArn. When we decided Avery, Shanks & Waltman, Inc., Mississippi

employees had no action for wrongful discharge in violation of public policy. The only

action available to them was a claim for breach of contract. But, as we explained above,

McArn claims have nothing to do with the existence of a contractual relationship. So our

holding in Avery, Shanks & Waltman, Inc. does not control our analysis. And, as we

recognized in Michael S. Fawer, Section 15-1-29 applies only to traditional employment

disputes. While McArn wrongful-discharge claims may be related to employment disputes,

35
Avery, Shanks & Waltman, Inc., 404 So. 2d at 1037-38.
36
White, 692 F.2d at 3.
37
Michael S. Fawer, 627 So. 2d at 833.

11
the employer’s duty is based on matters external to the employment dispute. Thus, Michael

S. Fawer does not control our analysis.

¶22. Both Avery, Shanks & Waltman, Inc. and Michael S. Fawer are instructive as to

what sorts of claims should be subject to Section 15-1-29’s one-year statute of limitations.

For instance, a claim by an at-will employee—with no written employment contract—for

verbally promised vacation days would be governed by Section 15-1-29. Such a claim would

be based on the employer’s alleged unwritten agreement. Likewise, an at-will employee’s

claim for the failure to give a promised performance or holiday bonus would fall within

Section 15-1-29’s purview.

¶23. But an independent tort action against an employer for wrongful discharge in violation

of public policy has no relationship to the employment agreement and cannot be subject to

the statute of limitations in Section 15-1-29.

¶24. Because McArn claims are independent tort actions and are not based on any

employment contract, they are not subject to Section 15-1-29’s one-year statute of

limitations. Section 15-1-49 provides that “[a]ll actions for which no other period of

limitation is prescribed shall be commenced within three (3) years next after the cause of

such action accrued, and not after.” While we have not previously stated that this is the

statute of limitations that applies to McArn claims, we do so today. Any language

inconsistent with our holding today found in our previous decisions and decisions from the

Court of Appeals is now overruled.

CONCLUSION

12
¶25. McArn wrongful-discharge claims are subject to Section 15-1-49’s three-year statute

of limitations. We affirm the trial court’s denial of Community Care Center’s motion for

summary judgment, and we remand this case to the trial court for further proceedings

consistent with this opinion.

¶26. AFFIRMED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, PIERCE, KING
AND COLEMAN, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

13