Daily Independent (Ashland, KY)

March 28, 2013

Marathon rifle case: Motion calls for suit to be returned to state court

Kenneth Hart
The Independent

ASHLAND — A Marathon Petroleum Co. employee who filed a federal lawsuit against the company alleging his rights were violated when he was disciplined for having a hunting rifle in the back seat of his vehicle wants the case moved back to state court.

Noah R. Friend of Pikeville, an attorney representing Jason Seth Mullins, and his wife, Tabitha Dawn Mullins, who is also a plaintiff, filed a motion this week in U.S. District Court requesting the suit be remanded to Boyd Circuit Court, where it was originally filed in December.

In the suit, Jason Mullins, a barge cleaner with Marathon’s marine group, claims the Marathon company policy under which he was disciplined runs counter to a Kentucky law that forbids employers from prohibiting anyone who is legally entitled to possess a firearm from keeping a weapon or ammunition in his or her vehicle on company property.

In addition to Marathon, the defendants include the company’s security contractor, Securitas Security Services USA Inc., and various employees of both companies.

In a memorandum in support of his motion for the case to be remanded, Friend states Marathon cited diversity of citizenship between the plaintiffs and defendants as the basis for removing the case to federal court. However, in its notice removal, Marathon acknowledged two of the individual defendants, Bea Smith and Jamie Alcorn, were citizens of Kentucky, the memorandum states.

According to Friend, Marathon argued the citizenship of the non-diverse defendants should be ignored under the fraudulent joinder doctrine. Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal.

However, Friend maintains an amended complaint filed after the case was removed to federal court includes additional causes of action against the non-diverse defendants and “clearly refutes’ Marathon’s claim of fraudulent joinder.

Friend argues the federal court “lacks subject matter jurisdiction” in the case because complete diversity of citizenship between the plaintiffs and defendants doesn’t exist.

Friend also contends the case belongs in state court because the defendant’s actions violated the public-policy exception to Kentucky’ at-will employment doctrine, which generally allows companies to fire workers for any reason or no reason and grants employers wide latitude in disciplining employees.

Kentucky lawmakers have exhibited strong public policy in favor of exempting a person’s vehicle from restrictions on the possession of deadly weapons and long-standing support for the right to bear arms in general, Friend wrote. That was illustrated last year with the passage of House Bill 500, which prohibits local governments from passing their own firearms regulations.

According to the lawsuit, an employee of Securitas walked past Jason Mullins’ vehicle in a Marathon-controlled parking lot of May 11, 2012, and noticed a hunting rifle in the back seat. That same day, Mullins claims he was called into a meeting with members of Marathon’s facility safety department. At that meeting, he says he was read the company’s weapons policy and then told to leave the premises until he was called.

During that meeting, Mullins claims he made the defendants aware of his rights, specifically citing the state law that allows workers to keep guns in their vehicles on company property.

Six days later, according to the suit, Mullins was summoned to another meeting and told he was being suspended for a day without pay and placed on probation for two years. During the probationary period, he was told he could be fired for any violation of company rule or policy, no matter how minor.

Mullins continued to work for nine more days until added stress caused his blood pressure to spike. He was hospitalized at St. Mary’s Medical Center for five days and was found to have suffered an aneurysm as the result of his increased blood pressure. He subsequently underwent two “invasive procedures” to address the aneurysm and the resulting damage from it, the suit states.

Mullins also alleges he has been cleared to return to work, but Marathon has refused to allow him to do so, forcing him to use all of his paid sick leave. He also maintains the defendants’ actions were an attempt to cause him to “voluntarily resign” his employment.

Marathon acknowledges Mullins received “some form of discipline” during the course of his employment with the company, but it specifically denies wrongdoing.

The company also denies not allowing Mullins to return to work. According to its response to the suit, Mullins first attempted to return on June 5, but the company medical staff wouldn’t clear him because his blood pressure was still dangerously high. He next attempted to come back on June 14, at which point the medical staff cleared him to come back with restrictions.

Marathon claims it was able to provide work for Mullins within those restrictions on June 15 and 18, and that otherwise, he was on leave of absence under the company’s sick leave policy, receiving 100 percent pay from June 4 until July 17 and 60 percent pay from July 18 until Oct. 19.

Also, Marathon maintains Mullins’ treating physician prevented him from working from July 3 through Oct. 22, at which point he returned to work.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.