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Southwest Gas v. Vargas8/24/1995
ains both promissory language and a disclaimer should be viewed as inherently ambiguous. Thus, . . . the entire handbook, including any disclaimer, should be considered in determining whether the handbook gives rise to a promise, an expectation and a benefit. "As with any question of fact, this is primarily a matter for the jury to decide. The court should intervene to resolve the handbook issue as a matter of law only if the handbook statements and the disclaimer, taken together, establish beyond any doubt tha an enforceable promise either does or does not exist."
Fleming v. Borden, Inc., 450 S.E.2d 589, 596 (S.C. 1994) (quoting Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers, 13 Indus. Rel. L.J. 326, 375-76 (1991-92)). Although the disclaimers at issue preserved an employee's right to terminate his or her employment at will, they subjected Southwest's stated policy regarding employee termination to the "applicable policies in effect from time to time." In light of this limitation, the handbook policy providing that Southwest employees may only be terminated for cause, and the language in the disclaimer providing that no employee at Southwest has a contract of employment, created an ambiguity that precluded judgment in Southwest's favor on that point as a matter of law. It appears implicit from the record that following our holding in Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983), Southwest attempted to protect itself from future contractual liability to its employees in situations involving termination. Nevertheless, rather than issuing a clear disclaimer comparable to that in Perry (alluded to in D'Angelo), Southwest apparently elected to preserve its for-cause termination policy in its Company Information Manual. An unfortunate and potentially troublesome predicament arises when an employer, desiring to diminish its potential exposure to contractual liability, also seeks to retain policy statements conducive to employee morale and productivity
[111 Nev. 1064, Page 1073]
engendered by expressions of job security. We nevertheless conclude that an ambiguous disclaimer of the type issued to its employees by Southwest is insufficient, as a matter of law, to vitiate evidence of a for-cause employment contract of the nature and quality present here. Having concluded that substantial evidence supported the jury's finding of an employment contract between Vargas and Southwest, we now turn to the issue of whether his discharge constituted a breach of Vargas's right to be terminated only for cause.
The Alleged Breach of Contract
Vargas alleges a breach of his employment contract based upon two theories: (1) that the alleged misconduct for which he was terminated did not amount to good cause; and (2) that Southwest wrongfully failed to apply progressive discipline procedures prior to his termination. In resolving the first argument posited in support of a contractual breach, it is essential to address the role of the trier of fact in determining whether an employer's stated reasons for terminating an employee with a long-term employment contract amount to good cause. The parties appear to agree on the applicable standard. Both maintain that Vargas had the burden of proving by a preponderance of the evidence that Southwest did not have a legitimate business reason for firing him. The issue, in other words, is whether Southwest "reasonably believed" that Vargas had sexually harassed other employees. Southwest contends that Vargas raised no genuine issue of material fact with respect to the reasonableness of its belief that he had engaged in sexual harassment. Vargas counters that since the jury heard and rejected the testim
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