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Bigelow v. Bullard8/24/1995
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
[111 Nev. 1178, Page 1181]
discharge 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 dismissed Mr.
[111 Nev. 1178, Page 1182]
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 grava
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