Walgreen Pharmacist Not Wrongfully Fired After Using Gun During Robbery, Court Rules

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By Jay-Anne B. Casuga  

June 2 — A Walgreen Co. pharmacist in Michigan who was terminated after he fired his concealed handgun during a store robbery failed to show he was wrongfully discharged in violation of public policy, the U.S. Court of Appeals for the Sixth Circuit ruled June 2.

The Sixth Circuit found that Jeremy Hoven, an at-will employee, failed to show that he was fired for exercising a “right conferred by a well-established legislative enactment.”

The appeals court rejected Hoven's arguments that the U.S. and Michigan constitutions, as well as state laws pertaining to self-defense and the licensing of concealed weapons, granted him the rights to defend himself and others, and to carry a concealed gun while on the job.

No state currently prohibits employers from banning firearms on company property, excluding parking lots, according to a recent Bloomberg BNA Insights article. Approximately 22 states allow employees to store their firearms in their locked vehicles while at work.

Counsel for Hoven June 2 declined to comment on the ruling. Attorneys for Walgreen didn't respond to Bloomberg BNA's June 2 request for comment.

Worker Fired Gun During Robbery

According to the court, Hoven obtained a license to lawfully carry a concealed weapon after he experienced his first armed robbery at a Walgreen store in 2007. He bought a handgun and began to bring it to work in his pocket.

In May 2011, masked armed robbers entered his store, and one pointed a gun at Hoven, who responded by firing his concealed gun multiple times. The incident resulted in no injuries.

Walgreen officials met with Hoven and told him he could choose to resign or be fired for violating the company's non-escalation policy. Hoven refused to resign and he was fired several days later.

Hoven sued Walgreen, but the U.S. District Court for the Western District of Michigan ruled against him.

At-Will Exception Not Applicable

On appeal, the Sixth Circuit affirmed and ruled that Hoven failed to state a viable claim for termination in violation of public policy.

Under Michigan law, the court explained, employers may discharge at-will employees “at any time for any, or no, reason.” But Michigan has recognized an exception to this general rule where an employer's reasons for firing an employee are “so contrary to public policy as to be actionable,” the court said.

It found that the Michigan Supreme Court has recognized three scenarios in which the exception may apply, one of which involves instances in which an employee “is discharged for exercising a right conferred by a well-established legislative enactment.”

The Sixth Circuit found that Hoven failed to establish that the exception applied in his case.

The court rejected Hoven's argument that the Second Amendment of the U.S. Constitution, and an analogous article in the Michigan Constitution, supported his public policy claim.

Although those provisions “limit some state interference with individuals' right to engage in self-defense and bear arms, they do not prevent interference with these rights by private actors,” such as Walgreen, the Sixth Circuit said.

It also found no merit to Hoven's reliance on the Michigan Self-Defense Act. That law doesn't “confer” a general right to engage in self-defense or the defense of others, or to carry concealed weapons, the court said.

In addition, the Sixth Circuit dismissed Hoven's reliance on Michigan laws pertaining to the licensing of concealed weapons, which state that employers shall not prohibit employees from applying for or receiving such a license or from carrying a concealed gun in compliance with that license (Mich. Comp. Laws § 28.425n(2)).

The appeals court observed, however, that the laws also expressly state that they don't prohibit an employer from barring an employee from carrying a concealed weapon in the course of his or her employment.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

The opinion is at http://www.bloomberglaw.com/public/document/Jeremy_Hoven_v_Walgreen_Co_Docket_No_1301011_6th_Cir_Jan_03_2013_.

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