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Southwest Gas v. Vargas8/24/1995
om time to time. By my signature appearing below, I acknowledge having read the foregoing introductory statement . . . .
Apparently, similar disclaimers had been used by Southwest since 1982, and Vargas remembered signing similar disclaimer forms as early as 1984 or 1985. Vargas testified that upon expressing concern about the foregoing disclaimer, Olsen of the Human Resources Department assured him that nothing was changing regarding termination or length of employment, and that he signed the disclaimer in reliance on that oral guarantee. The jury deliberated and returned a general verdict for Vargas, awarding him $365,236.00 in damages, and judgment was entered accordingly. Southwest appeals the final judgment and the district court's order denying its
[111 Nev. 1064, Page 1071]
motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.
DISCUSSION
The Employment Contract
All employees in Nevada are presumed to be at-will employees. American Bank Stationery v. Farmer, 106 Nev. 698, 701, 799 P.2d 1100, 1101-02 (1990). An employee may rebut this presumption by proving by a preponderance of the evidence that there was an express or implied contract of employment that provided for termination only for cause. Id.
Southwest contends that Vargas failed to rebut the at-will presumption at trial. We disagree. In view of the provision in the employee's manual stating that " regular employee may only be terminated for cause," coupled with Vargas's testimony that Southwest orally guaranteed him long-term employment, the jury's finding that Vargas had a long-term contractual relationship with Southwest is supported by substantial evidence. See American Bank Stationery, 106 Nev. at 702, 799 P.2d at 1102 (handbook declaring that employees could be discharged only for cause was written evidence of express oral contract). Moreover, Southwest's assertion that the disclaimers signed by Vargas in January and February 1988 effected a modification of the employment contract as a matter of law is without merit. In D'Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206 (1991), we acknowledged the potential impact of an appropriately worded disclaimer:
Of course, the employer can easily prevent [the inference that a handbook is part of the employment contract] from arising by including in its handbook an express disclaimer of implied contractual liability of the type found in Perry v. Sears, Roebuck & Co., 508 So. 2d 1086, 1088 (Miss. 1987). In Perry, the pension plan manual at issue stated in bold type, "Employment rights not implied," and further stated that "Participation in the plan does not . . . interfere in any way with the right of the company to discharge or terminate you at any time." In light of these statements, the court correctly found that no inference of implied contractual liability was present; thus, the court held that summary judgment was proper.
Id. at 708 n.4, 819 P.2d at 209 n.4. Moreover, given the degree of murkiness involved in termination cases involving rights assertedly arising
[111 Nev. 1064, Page 1072]
from employee handbooks, it is perhaps helpful to note that case authority allows for determinations by triers of fact where such handbooks contain an element of relevant ambiguity. Thus, it has been held that:
"the disclaimer is merely one factor to consider in ascertaining whether the handbook as a whole conveys credible promises that should be enforced. . . . The disclaimer, which necessarily militates against enforcement, should be weighed in the balance along with other handbook provisions. . . . handbook that cont
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