# D'Angelo v. Gardner > Nevada Supreme Court · October 24, 1991 · 107 Nev. 704 URL: https://www.frixlaw.com/law-library/cases/9633460 ## Case - **Full name:** DON D’ANGELO, Appellant, v. SUE GARDNER, GEMCO, a Division of LUCKY STORES, INC., and LUCKY STORES, INC., Respondents; WESTERN STATES MINERALS CORP., a Utah Corporation, Appellant, v. ROBERT C. JONES, and GAIL A. JONES, Husband and Wife, Respondents - **Court:** Nevada Supreme Court - **Decided:** October 24, 1991 - **Citations:** 107 Nev. 704; 819 P.2d 206; 6 I.E.R. Cas. (BNA) 1545; 1991 Nev. LEXIS 161 - **Precedential status:** Published - **Opinion:** Concurrence by Mowbray - **Judges:** Springer, Mowbray, Steffen, Rose, Young - **Cited by:** 99 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633460 ## How later opinions describe it (automated extraction) - holding that employee handbook may reflect contractual obligations between employer and employee where handbook sets forth provisions related to termination for cause, the employer delivers it to the employee, the employee reads and acknowledges its contents, and the employee … - stating that, in reviewing findings of the State Engineer, this court is limited to “a determination of whether substantial evidence in the record supports the State Engineer’s decision” (emphasis added) - holding that a claim for tortious discharge “stands by itself” and is not dependent on a contract of continued employment between the parties - recognizing the rule against permitting 3 an independent tort action when a statutory remedy exists but finding no comprehensive 4 statutory remedy existed - noting that a determination that public policy has been violated does not end the matter of whether an additional exception to the at-will employment doctrine should be recognized ## Opinion text Mowbray, C. J., concurring: I join in and agree with the majority opinion; however, I wish to address several of the charges made in the dissent. PRELIMINARY COMMENTS The dissenting author quotes at length a series of rhetorical questions that I posed from the bench during the oral argument of D’Angelo v. Gardner, et al. 1 The questions were focused on the *724 inquiry: “Is this the decent thing to do?” I stand by those questions. It is the duty of this court to protect the interests of all who come before it, not just the privileged and the powerful. A court of law should not be blind to justice. 2 The dissent also suggests that the majority condones theft. This suggestion is an insult both to the integrity of this court, and to the intelligence of the reader. 3 D’ANGELO v. GARDNER, ET. AL., DOCKET NO. 20452 The author of the dissent complains that the majority’s ruling “strikes at the validity or decency of the at-will employment doctrine.” I suggest that my colleague misapprehends the majority opinion. The primary issue addressed by the majority is whether appellant D’Angelo presented sufficient evidence of an implied-in-fact contract to survive summary judgment. The majority properly concludes, based upon the facts detailed in the majority opinion, that the evidence can support a prima facie cause of action. Nothing in the majority opinion invalidates or “decrees” an end to the at-will presumption. Since the at-will presumption remains intact, one must wonder at the apocalyptic predictions set forth in the dissent. These misplaced and fanciful fears reflect a tone of consternation that permeates the entire dissent. The dissenting author’s dismay may well result from the majority’s unwillingness to acquiesce in the dissenters’ attempt to transform the at-will presumption into an at-will conclusion. 4 *725 This state has long recognized implied-in-fact contracts in the employment context. In Southwest Gas Corp. v. Ahmad, 99 Nev. 594 , 668 P.2d 261 (1983), this court concluded that an employer was contractually bound to honor a termination clause appearing in an employee handbook. 5 The Ahmad opinion has never been overruled, and it is controlling in the case before us. Instead of adhering to our holding in Ahmad , the dissenting author glosses over that precedent in favor of those cases with which he agrees. 6 In particular, he relies upon Valgardson 7 and Vancheri 8 . Neither case supports the dissenting author’s position. In Valgardson, this court determined that “no provision in the handbook modified the Sands’ common-law right to discharge [its employees] at its whim.” Valgardson, 105 Nev. at 439, 111 P.2d at 899 (citing Smith v. Cladianos, 104 Nev. 67, 68-69 , 752 P.2d 233, 234 (1988)). Unlike GEMCO’s employee handbook, the Sands’ handbook contained no language which might imply permanent employment. Thus, Valgardson is distinguishable from the instant case. The dissent’s reliance on Vancheri is equally misplaced. In Vancheri, a breach of contract action was tried before the jury. Vancheri, 105 Nev. at 419, 777 P.2d at 368. At trial, Vancheri failed to introduce any independent evidence of an express or implied contract other than his “understanding” of the arrangement. Id. at 421, 777 P.2d at 369. At the close of the case-in-chief, the district court dismissed the action pursuant to NRCP 41(b). Id. at 419-420, 777 P.2d at 368. We affirmed the judgment, concluding that “[c] on tracts of employment cannot be created by the subjective expectations of an employee.” Id. at 421, 777 P.2d at 369. In the case before us, however, Mr. D’Angelo presents much more than “subjective expectations.” As the majority opinion makes clear, the language included in the employee handbook, together with GEMCO’s use of the handbook as the basis for D’Angelo’s dismissal, raises an inference of an obligation of continued employment. Thus, notwithstanding the best efforts of the dissent, existing case law cannot support a summary judgment in the present case. Perhaps when the clouds of dogma clear, and the opinion is viewed “in the clear light of day,” the dissent will perceive its error. *726 Accordingly, I concur in the majority’s decision to reverse Judge Thompson’s order granting summary judgment and to remand this case to the district court for a trial on the merits. WESTERN STATES MINERALS CORP. v. JONES, DOCKET NO. 19697 This is one of the most egregious cases ever to come before this court. Mr. Jones was ordered by his supervisors to work around cyanide while suffering from an open surgical wound. Mr. Jones had learned from company training sessions that this would be dangerous. He informed his supervisors that it would be unsafe to work around the cyanide area while he still had the open wound. Mr. Jones was fired for this “insubordination.” Nevada recognizes a claim of tortious discharge in violation of public policy. See Hansen v. Harrah’s, 100 Nev. 60 , 675 P.2d 394 (1984). The discharge of Mr. Jones violated public policy. Why then, does the dissent conclude that no cause of action lies? To answer this question, it is helpful to consider the following statements made by the dissenting author during oral argument of this case: I don’t think there’s any division at all on this court, there’s no need for emotion, this man was wrongfully treated Every member of this court, in the original opinion that was recalled, agreed that this man was wrongfully treated— so there’s not an issue there. There are, however, legal issues. And, unfortunately, this court has to deal with legal issues. That’s all I wanted to say. On the surface, the rationale advanced by the dissenting author seems almost beyond reproach. “There’s nothing we can do about it” is the outcry; “We are constrained by the law.” A closer look at the dissent exposes more insidious motives. As the “legal issue” that bars a cause of action, the dissenting author cites NRS 618.445(2), which provides as follows: Any employee aggrieved by a violation of subsection 1 may file a complaint for the relief afforded under subsection 3, after first notifying his employer and the division of his intention to file the complaint. Any complaint must be filed with the division within 30 days after the violation has occurred and must set forth in writing the facts constituting the violation. This statutory provision is irrelevant to the instant case. Mr. Jones brought a common law action for wrongful discharge in violation of public policy; NRS 618.445(2) does not address or in *727 any way preclude that common law tort. Rather, that statute creates a right of reinstatement for workers who have been discharged for filing a complaint, testifying in a proceeding, or exercising a right afforded by NOSHA. See NRS 618.445(1). 9 Thus, no genuine legal issue precludes Mr. Jones from bringing this tort action. The dissenting author claims that there is nothing we can do, given the existing legal parameters, to redress the wrongful treatment suffered by Mr. Jones. This claim is spurious. It is offered only to mask a desire to abridge the rights of employees to be free of arbitrary or unjust discharge. Accordingly, I concur in the majority’s decision to affirm the judgment of the district court. CONCLUSION I, therefore, agree with the majority opinion in D’Angelo v. Gardner, et. al., reversing the summary judgment of Judge Thompson and remanding the case for a trial on the merits, thereby ensuring that Mr. D’Angelo shall have his day in court. I further agree with the majority that the jury verdict in Western States Minerals Corp. v. Jones be affirmed and that the award of damages to Mr. Jones be sustained. One of the justices stated from the bench: So we’re here over twenty bucks .... But he [D’Angelo] had twelve years of service. That’s twice the term that we have on this court, our terms are six — that’s three times the terms of the President of the United States. That’s three times the terms of the Governor across the street. Now, he may be a lot of things that I don’t know about. But this is all I know about him. And, he is axed because of that. Now, this is what the record reflects to me. Now, he wants to go in to a jury trial and he tries to get a jury trial, but the judge says “no, I’m going to cut you off at the gate. You can’t have your jury trial.” What bothered me when I reviewed those facts was, is this the decent thing to do? Is this living by the Golden Rule, when a man has worked for twelve years, based upon what I know. Is he married, does he have children, does he have *724 house payments. Is this what “at will” means, that you can do this to employees? Are they a bag of oats? But this is how I see this case. For twenty dollars involved, twelve years of his life, he gets the ax. There is an unfortunate trend among modern courts to regard justice as the unspeakable “J-word.” I, for one, reject the idea that justice is an irrelevant consideration for a court of law. It is well to remember that he who does justice will live in the presence of the Lord. Psalms 15:2-5. I am frankly quite concerned about the dissent’s ready willingness to sully Mr. D’Angelo’s reputation, and summarily treat him as a thief. “Dishonesty is dishonesty” exhorts the dissenting author. The whole point, of course, is that we do not know whether the man was a thief or an innocent victim. And the reason we do not know this is because Mr. D’Angelo has not yet had his day in court. The at-will presumption is indeed a presumption, not a conclusion. When employers make promises of continued employment to employees, those promises should be binding. Employers have duties to employees just as employees have duties to employers. Their relationship is a two-way street. For a complete discussion of Ahmad , I refer the reader to the majority opinion, pp. 3-4. Perhaps because he dissented in Ahmad , the dissenting author concludes that he can unilaterally disregard the precedent set forth in that case. Sands Regent v. Valgardson, 105 Nev. 436 , 777 P.2d 898 (1989). Vancheri v. GNLV Corp., 105 Nev. 417 , 777 P.2d 366 (1989). NRS 618.445(1), referred to by subsection (2) states the following: A person shall not discharge or in any manner discriminate against any employee because the employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by the employee on behalf of himself or others of any right afforded by this chapter. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633460. Public record. Not legal advice.