Mass.: No Employer Liability in Employee Gun Case

By Diane Cadrain Feb 12, 2015

A security guard who was terminated for carrying the gun his employer issued him and using it at work lost his claims for wrongful termination and intentional infliction of emotional distress.

Andrew Pierre started working as a security guard for U.S. Security Associates (USSA) in 2011. He had a state firearm license which was limited to hunting and target practice purposes, but did not include employment. Still, USSA had Pierre carry a 9 millimeter handgun and then a .38 special handgun. His boss assured Pierre that the Boston Police were aware of and approved of these assignments.

An incident involving the 9 millimeter handgun and the .38 special resulted in his termination, though, after which he sued USSA for wrongful termination, among other claims.

The incident that led to the termination happened on Aug. 16, 2013, when Pierre and another security guard were assigned to a dangerous are where shootings were frequent. There, a large group surrounded the two guards. One individual carried a large bottle of alcohol, which Pierre feared could be used as a dangerous weapon, and various members of the group threatened to "pop" him, which he understood to mean that they would shoot him. Pierre then removed his weapon from his holster. He did not fire his weapon nor did he point it at anyone. After the group withdrew, Pierre returned his gun to his holster and contacted USSA requesting that they contact the Boston Police Department for additional assistance.

Then, on Aug. 29, 2013, the Boston Police revoked Pierre's license to carry, and USSA terminated his employment. USSA said that it let him go because he was carrying a 9 millimeter handgun rather than a .38 special and because he withdrew his gun prematurely during the Aug. 16 incident. Pierre thought that USSA terminated his employment out of fear that law enforcement would investigate its practice of assigning employees without proper gun licenses to special police shifts.

He sued the company on a number of bases, including breach of contract, failure to pay wages, vicarious liability for violation of firearm licensing laws, wrongful termination, intentional infliction of emotional distress, and discrimination. The company made a motion to dismiss the vicarious liability, wrongful termination, emotional distress, and discrimination claims.

On the vicarious liability claim, Pierre argued that the company should be vicariously liable for forcing employees to violate state gun laws. But the court countered that the gun law he cited did not give individuals a private right of action to redress violations, and dismissed that count.

On the wrongful termination claim, Pierre argued that his termination was in violation of public policy. The court stated that in Massachusetts, employers are free to terminate employees at any time and for any reason, unless the termination is for a reason that violates public policy. On this issue, the court said that the existence of the state licensing law was not by itself a statement of public policy sufficient to protect an employee from termination.

“To be sure, a policy of encouraging employees to use guns in an unauthorized manner has troubling public safety ramifications,” the court stated, but decided that no public policy issue was involved.

Also, the court added that Massachusetts courts have not carved out a public policy exception for cases in which an employer makes fraudulent representations to an employee, and that they were generally reluctant to create new public policy exceptions.

On the claim of intentional infliction of emotional distress, the court stated that such a claim could be pursued, if at all, under the state’s workers’ compensation law.

A claim for breach of contract and failure to pay wages was not at issue. A claim for discrimination was dismissed without prejudice so that Pierre could pursue his remedies with the Massachusetts Commission against Discrimination.

The court dismissed the claims of vicarious liability, wrongful termination, and infliction of emotional distress with prejudice.

Pierre v. U.S. Security Associates, D. Mass., Civil No. 14-13382-GAO (Jan. 30, 2015).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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