Termination of Pharmacist for Firing Gun While on Duty

JULY 21, 2015
Joseph L. Fink III, BSPharm, JD
ISSUE OF THE CASE
When 2 masked gunmen enter a national pharmacy chain in the Midwest to conduct a robbery and the pharmacist on duty pulls out a personal firearm and opens fire, which leads to the chain terminating his employment, can he be successful with a legal argument that the termination was unlawful because it violated public policy?

FACTS OF THE CASE
In 2007, a pharmacist was on duty when an armed robbery occurred. Expressing concern about security, he requested that his employer, a national pharmacy chain, take steps to improve security measures, such as installing a panic button. No changes occurred in response to that request. The pharmacist then pursued and completed training to be eligible for a permit to lawfully carry a concealed weapon. Following that, he purchased a handgun to keep on his person while at work in the pharmacy.

In 2011, while the pharmacist was working an overnight shift, 2 masked criminals entered the pharmacy. The pharmacist tried to dial 911, but a gunman intervened by jumping the counter and pointing a gun at him. The pharmacist backed away from the phone, retrieved his weapon, and fired it multiple times. No one was hit or otherwise injured during the entire incident.

Subsequent to that event, the pharmacist was visited by 2 loss-prevention officials from the pharmacy chain. That session was followed 2 days later by a meeting with 3 company officials who informed him that he had violated the firm’s “nonescalation policy” and that he had 2 choices: resign his position or have his employment terminated. He was subsequently fired.

The pharmacist filed a lawsuit against the pharmacy chain alleging that his termination violated public policy for “lawfully exercising his right of self-defense, the defense of others, and to carry a concealed weapon.” He pointed to the Second Amendment to the Constitution, as well as a variety of state-level provisions.

Originally filed in a state court, the matter was shifted to the US District Court due to the diversity of citizenship between the pharmacist and the firm. The pharmacy chain moved for summary judgment (judgment without a trial) based on the court filings. The federal trial court agreed, concluding that the pharmacist’s submissions to the court had failed to establish a claim for termination in violation of public policy. The pharmacist then petitioned the US Court of Appeals.

THE COURT’S RULING
The Court of Appeals concurred with the District Court that the company should prevail because the pharmacist had not established that his termination was in violation of public policy.

THE COURT’S REASONING
The state where this matter arose uses an approach to employment law that is seen in a majority of states. Absent an employment contract, the relationship is employment-at-will. This means that either the employer or the employee may terminate the relationship at any time for any reason—even for no stated reason. This overarching rule has very few exceptions, one of which is the public policy exception. This doctrine states that some reasons for terminating an employee are “so contrary to public policy” as to provide a basis for a lawsuit regarding the termination. The pharmacist identified 7 possible reasons why application of public policy could have prevented his termination, not all of which will be addressed here.

Focusing first on the argument rooted in the Second Amendment, the right to bear arms, the court emphasized the well-established principle that this provision, along with a somewhat parallel provision in the state constitution, applied to protecting citizens from governmental interference with an individual’s right to bear arms and engage in self-defense. These provisions do not “prevent interference with these rights by private (nongovernmental) actors.” Thus, the court found no support for the pharmacist’s position in either the federal or state constitution.

Next, the pharmacist pointed to a state statute designated the Self-Defense Act. The court found fault with this argument, as well, stating that the statute does not grant private citizens the right to engage in self-defense. Rather, the statute is meant to confer on a person charged with a shooting the right to present a defense to criminal charges. A jury then evaluates the defendant’s argument to determine whether sufficient facts exist to exonerate him or her.

An additional argument advanced by the pharmacist was also rejected. This argument was based on the state’s concealed carry statute, which attempted to strike a balance between the rights of employees to undergo training and carry a concealed weapon and the interests of employers in not having concealed weapons in the workplace. The state law expressly confers on the employer the option of limiting an employee’s right to carry a concealed weapon in the course of employment.

The bottom line was that the pharmacist could identify no public policy exception to the employment-at-will doctrine that would invalidate his termination.


Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.


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