Yeager v. Harrah's Club, Inc.

897 P.2d 1093, 111 Nev. 830, 10 I.E.R. Cas. (BNA) 1333, 1995 Nev. LEXIS 89

• Court: Nevada Supreme Court
• Decided: June 27, 1995
• Docket: 23595
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

This action commenced in the district court after appellant Charles Yeager (Yeager) was terminated from his employment by respondent Harrah’s Club (Harrah’s). The district court granted summary judgment in favor of Harrah’s against all of Yeager’s claims because Yeager failed to overcome the presumption that he was employed at-will. For reasons discussed hereafter, we conclude that Yeager has failed to raise genuine issues of material fact concerning his status as an at-will employee; therefore, we affirm the lower court’s order of summary judgment.

FACTS

Yeager began working for Harrah’s as a cashier during the summer of 1965. During the next twenty-one years, Yeager progressed through the ranks, ultimately becoming the assistant general manager of operations. Sometime in early 1986, Holiday Corp.¹ began a restructuring of the organization. As a result, Yeager’s position and nine other key casino executive positions were eliminated. Consequently, Yeager and the nine other executives were terminated on July 29, 1986.

Almost two years later, Yeager filed a complaint in the district court in which he joined Harrah’s and Holiday Corp. as defendants. Yeager’s complaint set forth nine causes of action: (1) breach of an employment contract; (2) tortious breach of the covenant of good faith and fair dealing; (3) slander; (4) negligence; (5) conspiracy; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) invasion of privacy — -public disclosure of private facts; and (9) invasion of privacy — false light.

Yeager alleged that he had an implied contract for continued employment arising from: (1) verbal promises made at the outset of his employment relationship and continuously thereafter for twenty-one years; (2) written promises contained in the employee handbook that Yeager was required to read and acknowledge at the outset of his employment relationship; and (3) Harrah’s demonstrated policy of not terminating employees, including supervisory personnel, except for cause, which policy Yeager himself was required to follow as a supervisor. To buttress these assertions, Yeager provided the district court with the sworn affidavits of former co-workers James Caselli and Barney Mozingo. Mr. Caselli was employed at Harrah’s Reno from 1958 until 1986. Mr. Mozingo was employed at Harrah’s Reno for many years commencing in 1973. Both affiants’ employment careers overlapped with the career of Charles Yeager.²

In response to Yeager’s complaint, the respondents filed a joint answer denying all of the claims made by Yeager. Additionally, the respondents moved the district court for summary judgment pursuant to NRCP 56(b). They asserted that Yeager was merely an employee at-will, and was, therefore, subject to termination without cause as a matter of law.

Following a hearing on the summary judgment motion, the district court concluded that Yeager failed to overcome the presumption that he was employed at-will, and granted summary judgment in favor of the respondents. The district court further concluded that since Yeager’s tortious claims were dependent upon the existence of a contract for continued employment, summary judgment should be granted on them as well. This appeal followed.

LEGAL DISCUSSION

This court’s review of a summary judgment order is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989). Where a motion for summary judgment under NRCP 56(c) has been granted, the essential question on appeal is whether genuine issues of material fact were created by pleadings and proof offered. Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983). We are cognizant, however, that conclusory statements along with general allegations do not create an issue of fact. Michaels v. Sudeck, 107 Nev. 332, 334, 810 P.2d 1212, 1213 (1991). The resolution of this case turns on whether Yeager provided the district court with sufficient evidence to overcome the presumption that he was employed at-will. The at-will presumption is not enumerated under NRS 47.250³ as a disputable presumption. This court has held, however, that NRS 47.250 is illustrative and not exclusive. Privette v. Faulkner, 92 Nev. 353, 357, 550 P.2d 404, 406 (1976).

This court has consistently applied an employment at-will presumption in wrongful termination disputes. Vancheri v. GNLV Corp., 105 Nev. 417, 420, 777 P.2d 366, 368 (1989); see also Smith v. Cladianos, 104 Nev. 67, 68, 752 P.2d 233, 234 (1988); K Mart Corp. v. Ponsock, 103 Nev. 39, 42, 732 P.2d 1364, 1366 (1987). A presumption not only fixes the burden of going forward with evidence, but it also shifts the burden of proof. NRS 47.180(1); Vancheri, 105 Nev. at 421, 111 P.2d at 368. Generally, an at-will employment contract can be terminated whenever and for whatever cause by an employer without liability for wrongful discharge if the employment is not for a definite period and if there are no contractual or statutory restrictions on the right of discharge. Smith, 104 Nev. at 68, 752 P.2d at 234.

Oral Promises of Continued Employment

Yeager maintains that he has presented evidence to the district court that supports the existence of an implied contract and rebuts the at-will presumption. In support of this proposition, Yeager posits two arguments. First, Yeager claims that he was repeatedly promised that his employment would continue until retirement unless he was terminated for cause.⁴ Secondly, he asserts that written promises of continued employment were made in the employee handbook.

Yeager’s assertion that oral promises were made to him are uncorroborated,⁵ but must be accepted as true in resolving a motion for summary judgment against him. Thus, we must resolve whether an employee’s uncorroborated assertions that oral promises were made assuring his continued employment are enough to overcome the presumption of at-will employment.

This is a matter of first impression in Nevada. However, other jurisdictions have addressed the conflict between oral representations of long-term employment and the employment at-will presumption. In Virginia, “mere oral promises or assurances of job security are insufficient to rebut an at will presumption.” Sullivan v. Snap-On Tools Corp., 708 F. Supp. 750, 751 (E.D. Va. 1989) (citing Addison v. Amalgamated Clothing and Textile Workers, 372 S.E.2d 403, 405 (Va. 1988)), aff’d, 896 F.2d 547 (4th Cir. 1990). In Utah, “general assurances of an ongoing working relationship are not sufficiently definite so as to rebut the at-will presumption.” Evans v. GTE Health Systems, Inc., 857 P.2d 974, 977 (Utah Ct. App. 1993), aff’d, 878 P.2d 1153 (Utah 1994). In Washington, an employee remained an at-will employee despite repeated oral promises that he would retain a supervisory position as long as job performance met a certain level; such promises were “not sufficient to create an issue of material fact as to the existence of an enforceable promise of continued employment in a specific job.” Lawson v. Boeing Co., 792 P.2d 545, 548 (Wash. Ct. App. 1990), review denied, 811 P.2d 219 (Wash. 1991); see also Smoot v. Boise Cascade Corp., 942 F.2d 1408, 1410-11 (9th Cir. 1991).

Other courts examine whether the alleged oral contract was supported by consideration. Maietta v. United Parcel Service, Inc., 749 F. Supp. 1344 (D.N.J. 1990), aff’d, 932 F.2d 960 (3d Cir. 1991) (oral representation made to employee that he would not be fired except for cause did not convert his at-will employment into an employment contract providing for termination only for just cause, absent evidence that the alleged representation was made to induce employee to reject a specific job offer); Alter v. Resorts Int’l, Inc., 560 A.2d 1290 (N.J. Super. Ct. Ch. Div. 1989) (alleged lifetime contract between casino operator and former employee lacked consideration additional to services incident to employment, and thus was not enforceable). Another court examined whether the oral representation was specific enough to constitute an offer. Goodkind v. University of Minnesota, 417 N.W.2d 636 (Minn. 1988) (an employer’s general statements of policy do not meet the contractual requirements for an offer).

Essentially, Yeager wants this court to find that a contract for long-term employment existed based merely on his uncorroborated assertions that oral promises were made to him. However, if an employee could overcome the presumption of at-will employment merely by asserting that uncorroborated promises were made, then obituaries for the presumption should be written. Other than Yeager’s self-serving assertions, the record is bereft of any evidence that Harrah’s entered into a long-term employment contract with Yeager.

The dissent claims that we are imposing special restrictions on an employee who is making a wrongful termination claim. In a sense we are, and it is because we must define the quantum of evidence necessary to overcome the presumption of at-will employment. In doing this, we must balance conflicting principles, the unfettered right to sue against the continued viability of the employment at-will presumption, and the special interests of both employer and employee. We are not dealing just with a contractual cause of action but with one that squarely clashes with the employee at-will presumption that is part of Nevada law. Our responsibility is to state, in a case-by-case basis, what evidence is sufficient to overcome the presumption. This supporting evidence to overcome the employment at-will presumption can take a variety of forms, the employer’s handbook or correspondence, the employer’s personnel practices or witnesses to the specific employment contract. None of these types of evidence supports the employee’s claim in this case as we explain.

This case is not the first time we have denied a worker’s claim that he was a for cause employee because he did not produce corroborating evidence. In Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366 (1989), we stated:

Vancheri testified that it was his “understanding” that the employment was for a fixed period. He failed, however, to offer any independent evidence indicating the terms of an employment contract.

Id. at 421, 777 P.2d at 369. The dissent’s claim that we are establishing a corroboration requirement for the first time is simply in error.

In short, an employee alleging the existence of a long-term employment contract must supply some corroboration that a contract has been formed specifically with that employee. Uncorroborated assertions, alone, do not overcome the presumption of at-will employment. .>

Written Promises of Continued Employment

Next, Yeager argues that written promises in the employee handbook converted his employment status into termination only for cause.⁶ The employee handbook lists some general guidelines of personnel policy⁷ and twenty-three modes of conduct that will absolutely result in dismissal. Among the prohibited behaviors listed are drunkenness, lewdness, fighting, and theft. From this, Yeager concludes that he could not be terminated unless he performed one of these proscribed modes of conduct. We disagree.

Nothing in the handbook states that the twenty-three listed infractions are the exclusive causes for termination, nor does the handbook say that an employee will not be terminated on other grounds or for no reason at all. For example, why would Harrah’s foreclose on its ability to hire and fire employees as the gaming markets expand and contract? Yeager’s conclusion suggests that when market forces contract, Harrah’s has to remain at full employment because market contraction is not among the listed causes for termination. It is doubtful that Harrah’s would intend this result by listing certain proscribed conduct in an employee handbook. It is more plausible that Harrah’s merely intended the handbook to be a guideline for employees to measure their conduct against.

In support of his argument, Yeager relies on this court’s holding in D’Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206 (1991). In D’Angelo, the defendant, GEMCO, terminated D’Angelo for selling outdated film at a discount price without permission. The GEMCO employees’ handbook contained a rule prohibiting unauthorized discounts to anyone without permission. The handbook also included a clause providing that any discharge for failing to do work as required had to be preceded by a written notice to the employee. D’Angelo was dismissed without notice. In a letter to the labor commissioner, GEMCO stated, “As noted in the Handbook, which Mr. D’Angelo has read and acknowledged understanding of, deviation from this rule is considered most serious by the company and proper cause for discharge.” Id. at 709, 819 P.2d at 210. This court held that there was a triable issue of fact because:

GEMCO’s reference to the handbook, the proclaimed “understanding” of the parties relative to the handbook, and GEMCO’s reference to a rule violation taken from the handbook as being the cause of D’Angelo’s dismissal, all tend to lead to the conclusion that the employment relationship was defined by the handbook and that both parties considered themselves bound by the handbook with reference to termination rights and processes.

Id.

While D ’Angelo stands for the proposition that, under certain circumstances, an employee handbook can be incorporated into the employment agreement, it is not dispositive of the instant case. Unlike D ’Angelo, Harrah’s did not terminate Yeager for any of the twenty-three proscribed modes of conduct listed in the employee handbook. Instead, Yeager was dismissed because of corporate restructuring and because his duties duplicated those of another employee.

Yeager also relies on American Bank Stationery v. Farmer, 106 Nev. 698, 799 P.2d 1100 (1990). In Farmer, this court concluded that an employee handbook rebutted the presumption that Farmer was an at-will employee because the handbook specifically said that an employee could only be terminated for cause. Id. at 702, 799 P.2d at 1102. The instant case is easily distinguishable from Farmer because Harrah’s employee handbook does not proclaim that an employee can only be terminated for cause. Moreover, in Farmer this court also stated: “We emphasize that this opinion does not stand for the proposition that an employee handbook explaining a company’s policies regarding termination automatically transforms an at-will employee into an employee who may only be fired for cause. Such a holding could discourage companies from publishing such handbooks.” Id. at 703, 799 P.2d at 1102.

Finally, in D’Angelo this court declared: “Just as there are cases in which handbooks and employment practices can be found to support an express or implied obligation of continued employment, so are there cases in which such an obligation is absent as a matter of law.” D’Angelo, 107 Nev. at 710, 819 P.2d at 210. The instant case falls among the latter.

CONCLUSION

We conclude that nothing in the record, other than Yeager’s own statements, substantiates the allegation that Yeager had a contract for continued employment. Likewise, Yeager’s tort claims fail for lack of a contract for continued employment and because Harrah’s did not commit any acts that offend Nevada’s public policy. Accordingly, we affirm the district court’s order of summary judgment.

Steffen, C. J., Young and Shearing, JJ., concur.

1 Holiday Corp. owns 100% of the stock of Holiday Inns, Inc., which in turn owns 100% of the stock of Harrah’s Club, thereby making Harrah’s Club a wholly-owned subsidiary of Holiday Corp.

2 In virtually identical affidavits, Caselli and Mozingo declared that it was widely understood and accepted among Harrah’s employees that an employee could only be terminated for cause.

3 NRS 47.250 lists 21 disputable presumptions. These presumptions impose on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. NRS 47.180.

4 In Yeager’s deposition, the following dialogue took place:

Q You didn’t have an employment contract, did you?

A No. A written contract, no.

Q Did anyone promise you that you would have a job for a certain number of years?

A Rome Andriotti said several times to me that I’d be at Harrah’s until I retired ....

Q Other than saying that you had an opportunity to advance, did anyone tell you that you had lifetime employment?

A He did, Bill Harrah did, Bob Contois, Mert Smith, unless I did something wrong to jeopardize that, where I would be terminated if I stole, or something like that.

Q But did anyone promise that you would be there permanently?

A I considered that a promise, when — if you didn’t get out of line and did your job.

Q Are there any documents that you rely on that you believe promised you lifetime employment?

A Possibly when I first came to work there in the original handbook, because it stated that you had to do certain things to be terminated or you would have a lifetime career there and possibility of advancement.

5 Yeager did not offer to the district court the affidavit of anyone, other than himself, who heard these alleged promises being made, nor did he offer the affidavit of any person who made such an offer.

6 At the commencement of his employment, Yeager was given a copy of the employee handbook, entitled You and Your Job. The person assigned to train Yeager was required to make sure that Yeager had read and understood this handbook.

7 In addition to a section entitled ACTIONS RESULTING IN DISMISSAL, the employee handbook states Harrah’s personnel policy, in relevant part:

PERSONNEL POLICY

All of us here [at Harrah’s] are pledged to the following personnel program:

2. Fair treatment for each member of the organization from his supervisors and his fellow workers.

3. Maximum security of employment for everyone whose work is satisfactory.