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Silva v. American Federation of State11/26/2001
In this case, we accepted certification of several questions relating to the tort of retaliatory discharge from the United States Court of Appeals for the Tenth Circuit. See Silva v. Am. Fed'n of State, County, and Mun. Employees, 231 F.3d 691 (10th Cir. 2000).
These questions arose in an appeal by the American Federation of State, County and Municipal Employees (AFSCME) from the denial of their motions for judgment, for a new trial, and for remittitur following a substantial jury verdict for an employee who was subject to a collective bargaining agreement. We have jurisdiction under NMSA 1978, ยง 39-7-4 (1997) and Rule 12-607 NMRA 2001. The first question certified is:
Does the New Mexico Supreme Court's holding in Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 872 P.2d 859 (1994), allow a plaintiff who is not an at-will employee to pursue an action for the tort of retaliatory discharge under the public policy exception outlined in Silva v. Albuquerque Assembly & Distribution Freeport Warehouse Corp., 106 N.M. 19, 738 P.2d 513, 515 (1987), when the plaintiff has an alternative remedial grievance procedure available under a collective bargaining agreement? 231 F.3d at 691.
We conclude that Gandy does not "allow a plaintiff who is not an at-will employee to pursue an action for the tort of retaliatory discharge under the public policy exception," to the at-will doctrine. Because we answer the first question in the negative, we do not need to address the remaining questions that were certified.
I.
Jeremias Silva worked for AFSCME as a union organizer, and Silva's employment was governed by a collective bargaining agreement. 231 F.3d at 692. That agreement, in relevant part, states that " o employee shall be discharged or otherwise disciplined except for just and sufficient cause." The agreement also provides for a grievance procedure potentially ending in final and binding arbitration. Id.
AFSCME fired Silva. After he was fired, he brought several claims against his former employer in federal district court: (1) breach of employment contract, (2) intentional infliction of emotional distress, (3) violations of the Americans with Disabilities Act, and (4) retaliatory discharge. The federal district court granted AFSCME's motion to dismiss the first two claims and at the close of Silva's case granted AFSCME's motion for judgment as a matter of law on the third.
The retaliatory discharge claim went to the jury, which awarded Silva $624,940 in compensatory damages and $1,000,000 in punitive damages. AFSCME then moved for judgment as a matter of law, or an order granting a new trial and vacating the punitive damage award, or a remittitur of the punitive damage award. The district court denied these motions.
AFSCME appealed the denial of these motions to the Court of Appeals for the Tenth Circuit. On appeal, AFSCME argued, among other things, that the New Mexico tort of retaliatory discharge did not apply to Silva because his employment contract protected him from wrongful discharge.
The Court of Appeals for the Tenth Circuit then certified three questions to this court. The first question, quoted above, asked about the effect of Gandy on this Court's statements in Silva concerning the tort of retaliatory discharge. The second and third questions concern the effect of the collective bargaining agreement on the tort, and expressly request a response only if the answer to the first question is yes.
AFSCME had argued on appeal to the Tenth Circuit - and continues to argue - that Silva states a holding not affected by Gandy. AFSCME relied on the following langu
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