Date: 12-12-2015

Case Style: Steven Edward Galle v. Isle of Capri Casinos, Inc.

Case Number: 2013-CT-00024-SCT

Judge: Lawrence Bourgeois, Jr.

Court: IN THE SUPREME COURT OF MISSISSIPPI

Plaintiff's Attorney: MICHAEL F. CAVANAUGH

Defendant's Attorney: FRED L. BANKS, JR., LATOYA CHEREE MERRITT, GREGORY TODD BUTLER

Description: In December 2005, Steven Edward Galle began working in the poker room at Isle of
Capri Casino, Inc., in Biloxi, Mississippi, as an at-will employee. In 2008, Isle of Capri
promoted him to “poker room manager,” a “Key Position” requiring a “Key Employee
License” from the Mississippi Gaming Commission. When Galle applied for a Key Employee License, he failed to disclose a 1994 burglary arrest in his application, and the Gaming Commission denied his application because of this oversight. Although Galle could not hold a “Key Position” in the poker room, he still could
work as a poker dealer or supervisor, so Isle of Capri demoted him to poker room supervisor.
¶4. Isle of Capri later changed its logos and issued new employee identification badges.
Although Galle’s previous badge had indicated he was a supervisor, he was issued a new
badge indicating that he was the “poker room manager.” Galle told his supervisors that his
badge incorrectly identified him as the poker room manager, but his immediate supervisors
told him to wear the badge anyway, so he took no further steps to get a new badge, and he
wore both badges, one identifying him as the supervisor, and the other as the poker room
manager. ¶5. Gaming Commission enforcement agents noticed the badge that identified Galle as
poker room manager and asked him about it. On one occasion, he told the agents that there
was no poker room manager, but on another, he admitted he was the poker room manager.
1 See Miss. Gaming Comm’n Regulations, Title 13, Part 2, Rule 1.3, available at http://www.msgamingcommission.com/images/uploads/MGCRegs4.21.15.pdf (last visited December 9, 2015) (“Any executive, employee, or agent of a gaming licensee having the power to exercise a significant influence over decisions concerning any part of the operation of a gaming licensee or who is listed . . . may be required to hold a Key Employee License.”). 3
The agents reviewed Isle of Capri’s employment records and determined that Galle was
indeed acting as the poker room manager, so the Gaming Commission sent Isle of Capri a
letter stating: “Effective immediately, you are to remove Mr. Galle from any position
requiring a Key License.” A month later, Isle of Capri fired Galle for “[f]ailure to execute
a directive from gaming in an effective manner.”
¶6. Galle sued Isle of Capri and a litany of other employees and officials,2 alleging that
Isle of Capri and its employees violated his constitutional rights, intentionally inflicted
emotional distress, and “unjustly terminat[ed] [him] from his job.” Isle of Capri and the
other named defendants who were successfully served with process responded with a motion
for summary judgment on Galle’s wrongful-discharge claim, arguing that Galle was an at
will employee and that he could be fired for any reason. The defendants did not request
summary judgment on Galle’s claims for alleged constitutional rights violations or
intentional infliction of emotional distress.
¶7. After holding a hearing on the defendants’ motion for summary judgment, the circuit
judge summarily dismissed all of Galle’s claims. The circuit judge recognized the two
narrow public-policy exceptions to the at-will-employment doctrine but found that the
“[p]laintiff has not provided any evidence whatsoever that either of those two exceptions
2 Galle sued (1) Isle of Capri Casinos, Inc.; (2) Isle Casino-Hotel, Biloxi Division of Isle of Capri Casinos, Inc.; (3) James B. Perry, Chairman of the Board and Chief Executive Officer of Isle of Capri Casinos, Inc.; (4) Virginia McDowell, President and Chief Executive Officer of Isle of Capri Casinos, Inc.; (5) Lynn Banks, Corporate Director of Human Resources of Isle of Capri Casinos, Inc.; (6) John Doe 1 Employee; (7) John Doe 2 Employee; (8) Doug Shipley, General Manager of Isle Casino-Hotel Biloxi; (9) Bell Kessler, Senior Director of Human Resources of Isle Casino-Hotel Biloxi; and (10) Michael Cray, who has never been served with process. 4
exist.” The circuit court also found “that [p]laintiff has produced no credible evidence to
begin to prove an intentional tort, including conspiracy and/or intentional infliction of
emotional distress.”
¶8. Galle appealed, and the Court of Appeals reversed the circuit court’s grant of
summary judgment, concluding—as to his wrongful-discharge claim—“that there is a
genuine issue of material fact as to whether Galle was fired for reporting his illegally
managing the poker room,”3 and—as for his other claims—that “[s]ummary judgment cannot
be granted on grounds not raised and properly supported in the summary judgment motion
. . . .4 The Court of Appeals added that “the plaintiff is only required to produce evidence
after the defendant has made a prima facie showing that it is entitled to summary judgment.”5
¶9. The defendants then moved for rehearing in the Court of Appeals, and after their
motion was denied, timely filed a Petition for Writ of Certiorari in this Court, which we
granted.
ANALYSIS
¶10. On writ certiorari, Isle of Capri urges that the Court of Appeals’ reversal of summary
judgment on Galle’s claim of wrongful discharge must be reversed on three independent
grounds, because: (1) Galle did not report “criminally” illegal conduct, (2) Galle was a
3 Galle v. Isle of Capri Casinos, Inc., 2013-CP-00024-COA, 2014 WL 4067185, at *4 (Miss. Ct. App. Aug. 19, 2014). 4 Id. (citing Moore v. M & M Logging Inc., 51 So. 3d 216, 219 (Miss. Ct. App. 2010)). 5 Id. (citing Moore, 51 So. 3d at 219). 5
willing participant in the allegedly illegal conduct he reported, and (3) Galle did not report
conduct “because it was illegal.” The Mississippi Defense Lawyers Association in its amicus
curiae brief echoes these arguments. Galle argues that the Court of Appeals properly
reversed the circuit court.
¶11. We find that Galle’s willing participation in illegal activity, which he failed to report
before the Gaming Commission discovered it, bars him from bringing a McArn wrongful
discharge claim.6 Because this issue is dispositve, we need not address Isle of Capri’s other
arguments.
¶12. This Court reviews a circuit court’s grant of a motion for summary judgment de novo,
and we view all facts in the light most favorable to the party opposing the motion when
determining if the moving party is entitled to summary judgment.7
¶13. In Mississippi—when there is no written employment contract—the employment
relationship is at-will, which means that “an employee may be discharged at the employer’s
will for good reason, bad reason, or no reason at all, excepting only reasons independently
declared legally impermissible.”8 But in McArn, this Court recognized “two independent
tort actions based on ‘a narrow public policy exception to the employment at will doctrine.’”9
6 McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603, 607 (Miss. 1993). 7 Conrod v. Holder, 825 So. 2d 16, 18 (Miss. 2002) (citing Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993)). 8 Harris v. Miss. Valley State Univ., 873 So. 2d 970, 986 (Miss. 2004) (quoting Shaw v. Burchfield, 481 So. 2d 247, 253-54 (Miss. 1985)). 9 Cmty. Care Ctr. of Aberdeen v. Barrentine, 160 So. 3d 216, 218 (Miss. 2015) (quoting McArn, 626 So. 2d at 607). 6
We recently clarified that “[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.”10
¶14. In this case, the undisputed facts clearly establish that Galle was a willing participant
in Isle of Capri’s allegedly illegal scheme for him to manage the poker room without a Key
Employee License. Although Galle told his superiors that his name badge identified him as
the poker room manager and that he was ineligible to hold a Key Employee License, he
willingly abided by Isle of Capri’s instructions to manage the poker room anyway. Galle did
not make any reports of this allegedly illegal activity before the Gaming Commission
discovered that Galle was managing the poker room without a Key Employee License.
Galle’s willing participation in Isle of Capri’s allegedly illegal activity precludes him from
making a claim under McArn for wrongful discharge in violation of public policy.
¶15. As the Supreme Court of Colorado stated when addressing its own public-policy
exception to the employment-at-will doctrine:
The public policy exception protects an employee from being forced to choose between committing a crime and losing his or her job. If an employee commits a series of crimes and only points the finger at his employer after he has been fired, then there is no public policy rationale that supports the expansion to the general rule that an employer may discharge an at-will employee without liability. An at-will employee who participates in a criminal enterprise and does nothing to blow the whistle on this criminal enterprise does not gain special protection from discharge simply because the employer was also a complicitor in the crimes committed.11
10 Barrentine, 160 So. 3d at 220 (citing McArn, 626 So. 2d at 607). 11 Coors Brewing Co. v. Floyd, 978 P.2d 663, 667 (Colo. 1999) (internal footnotes omitted). 7
¶16. We agree with this reasoning and find that it comports perfectly with our own narrow
exceptions to the employment-at-will doctrine. McArn protects employees who blow the
whistle on allegedly illegal schemes, so long as they are not willing participants.12
¶17. We find no public-policy reason to allow an employee who willingly participated in
an illegal scheme and who blew the whistle only after the illegal scheme was revealed, to
claim the McArn exceptions to the employment-at-will doctrine.13 Because Galle is an at
will employee and because his claim does not fall within McArn’s narrow public-policy
exceptions to the employment-at-will doctrine, Galle has failed to state a legally cognizable
claim for wrongful discharge in violation of public policy.
¶18. Absent the narrow public-policy exceptions announced in McArn or prohibitions
contained in federal or state law, an employer may fire an at-will employee for any reason
or no reason at all.14 Here, Isle of Capri was free to fire Galle for “[f]ailure to execute a
directive from gaming in an effective manner,” even though Galle may have been acting in
12 See Barrentine, 160 So. 3d at 220 (citing McArn, 626 So. 2d at 607) (“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.”). 13 See Lowenburg v. Klein, 125 Miss. 284, 87 So. 653, 654 (1921) (quoting 9 Cyc. of Law, 546):
“No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out; nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxim, ‘Ex dolo malo non oritur actio,’ and in ‘In pari delicto potior est conditio defendentis.’ The law, in short, will not aid either party to an illegal agreement; it leaves the parties where it finds them.” 14 Harris, 873 So. 2d at 986. 8
conformity with Isle of Capri’s prior directive to manage the poker room without a Key
Employee License.

Outcome: We reverse the Court of Appeals’ decision reversing summary judgment on Galle’s
wrongful-discharge claim, and we affirm its decision reversing the circuit court’s sua sponte grant of summary judgment on Galle’s other claims. We affirm the circuit court’s grant of summary judgment in favor of Isle of Capri on Galle’s wrongful-discharge claim, but we reverse the circuit court’s sua sponte grant of summary judgment on Galle’s other claims and we remand this case for further proceedings consistent with this opinion.
THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED IN PART, REVERSED IN PART, AND THE CASE IS REMANDED.

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