Bigelow v. Bullard

901 P.2d 630, 111 Nev. 1178, 10 I.E.R. Cas. (BNA) 1635, 1995 Nev. LEXIS 120
CourtNevada Supreme Court
DecidedAugust 24, 1995
Docket24024
StatusPublished
Cited by18 cases

This text of 901 P.2d 630 (Bigelow v. Bullard) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bigelow v. Bullard, 901 P.2d 630, 111 Nev. 1178, 10 I.E.R. Cas. (BNA) 1635, 1995 Nev. LEXIS 120 (Neb. 1995).

Opinions

[1180]*1180OPINION

By the Court,

Springer, J.:

In this appeal we are called upon to resolve three separate issues. The first issue is whether respondents Michael Bullard and Ricky Hammer, employees of appellant-defendant Bigelow Holding Company have made out a prima facie case for tortious discharge.1 We conclude that they have not and reverse the tortious discharge judgment. The second issue is whether the judgments for wrongful eviction in favor of Bullard and Hammer can stand under NRS 118A.180(2)(h), which precludes a wrongful eviction action by an employee “whose right to occupancy is solely conditional upon employment.” We conclude that the wrongful eviction judgments in favor of Bullard and Hammer are valid and affirm them. The third issue is whether the judgment for assault and battery in favor of Susan Vaughn is supported by the evidence. On this issue we rule in favor of Vaughn and affirm the judgment of the trial court.

THE TORTIOUS DISCHARGE CLAIMS

Bullard and Hammer have recovered judgment for tortious [1181]*1181discharge based on a claim that they were discharged because of their objection to certain racial policies and activities on the part of their employer, Bigelow Holding Company. Bullard and Hammer were, uncontestably, at-will employees and were subject to dismissal by their employer Bigelow Holding Company at any time and for any reason or for no reason at all. D’Angelo v. Gardner (Western States v. Jones),2 107 Nev. 704, 711-12, 819 P.2d 206, 212 (1991); K Mart v. Ponsock, 103 Nev. 39, 47, 732 P.2d 1364, 1369 (1987). The only exception to the general rule that at-will employees can be dismissed without cause is the so-called public policy exception discussed in Western States, a case in which tort liability arose out of an employer’s dismissing an employee for refusing to follow his employer’s orders to work in an area that would have been dangerous to him. In Western States we ruled that the dismissal of a worker for refusing to work in a dangerous workplace was contrary to public policy, that an employer did not have the right to discharge an employee under such circumstances and that doing so was tortious misconduct on the part of the employer. It is “violative of public policy for an employer to dismiss an employee for refusing to work under conditions unreasonably dangerous to the employee.” Id. at 718, 819 P.2d at 216.

Other examples of tortious discharge are found in Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1984), in which the employer dismissed the employee for filing an industrial insurance compensation claim, and Hentzel v. Singer Co., 138 Cal. App. 3d 290 (1982), in which an employee was terminated for refusing to commit perjury. The rationale behind these kinds of tort actions is that, although an employer is free to dismiss an at-will employee under almost any circumstances, an employer is not entitled to dismiss an employee for a reason that contravenes public policy. This apparent exception to the at-will rule is a narrow one. To prevail, the employee must be able to establish that the dismissal was based upon the employee’s refusing to engage in conduct that was violative of public policy or upon the employee’s engaging in conduct which public policy favors (such as, say, performing jury duty or applying for industrial insurance benefits). Western States, 107 Nev. at 718, 819 P.2d at 215-16. For example, in the Western States case, if the employer had [1182]*1182dismissed Mr. Jones for employee misconduct that had no relationship to Mr. Jones’ refusal to enter the dangerous cyanide zone when he had an open surgical wound, tortious discharge would not lie. The gravamen of the tort is the employer’s improperly dismissing an employee for public policy-related causes.

The jury instruction in this case reflects the law on the subject. Instruction No. 36 instructed the jury that in this particular case there must be a “refusal or objection” by the employee to practices that were “violative of public policy” which “caused Defendants to terminate Plaintiff’s employment.” (Emphasis added.) In the present case neither of the dismissed employees registered with the employer any objection to or refusal to comply with untoward and racially-discriminatory practices claimed to have been engaged in by the employer. There is strong evidence that Bigelow, as a company, was engaging in racially-discriminatory practices, but there is no evidence that either Bullard or Hammer ever objected to Bigelow about these practices or refused any request or demand by the employer that the employees carry out these kinds of practices on behalf of the employer. If, for example, Bigelow had directed Bullard or Hammer to engage in any of the discriminatory practices or they would be fired, this would be an entirely different case; but there is no evidence that either employee was ever directed to engage in discriminatory practices, much less evidence that either was fired because he refused, as an employee, to engage in such practices or because he objected to such practices by Bigelow.

There is really no issue here with regard to Hammer. Bigelow claims to have dismissed him for unsatisfactory work performance. Bigelow might have fired Hammer, an at-will employee, because management did not like him or for any other reason. There is no connection between Hammer’s dismissal and any of the discriminatory practices that were alleged to be conducted by Bigelow. With regard to Bullard, however, the situation is a little different. Bullard thinks that he was dismissed because he made a remark to a fellow employee, Carol Swenson, that “Blacks have rights too.” Bullard thinks that this remark got back to one of the Bigelow managers, Donna Dallman, and that her decision to dismiss him was probably based on his having made the quoted statement to Carol Swenson.3

[1183]*1183When Dallman terminated Bullard “on second thought,” (see footnote 3) she gave no reason for the termination. An at-will employment “may be terminated at any time for any reason or for no reason.” Southwest Gas v. Ahmad, 99 Nev. 595, 596, 668 P.2d 261, 262 (1983). An employer may dismiss an at-will employee on mere “‘whim.’” Sands Regent v. Valgardson, 105 Nev. 436, 439, 777 P.2d 898, 899 (1989) (quoting Smith v. Cladianos, 104 Nev. 67, 69, 752 P.2d 233, 234 (1988). When one reads the dialogue between Dallman and Bullard (footnote 3), it would appear that when Dallman finally decided to dismiss Bullard, it was on the basis of her personal dislike for him and her general dissatisfaction with Bullard as an employee.

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Bigelow v. Bullard
901 P.2d 630 (Nevada Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
901 P.2d 630, 111 Nev. 1178, 10 I.E.R. Cas. (BNA) 1635, 1995 Nev. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bigelow-v-bullard-nev-1995.