Chavez v. Sievers

• Decision Date: 12 April 2002
• Docket Number: No. 34580, 34932.,34580, 34932.
• Citation: 118 Nev. 288,43 P.3d 1022
• Parties: Miguel CHAVEZ, Appellant, v. Gail SIEVERS, an Individual; Prosource Sales & Marketing, Inc., a Nevada Corporation; and Todd Hunt, an Individual, Respondents. (Two Cases).
• Court: Nevada Supreme Court

43 P.3d 1022

118 Nev. 288

Miguel CHAVEZ, Appellant, v. Gail SIEVERS, an Individual; Prosource Sales & Marketing, Inc., a Nevada Corporation; and Todd Hunt, an Individual, Respondents. (Two Cases).

No. 34580, 34932.

Supreme Court of Nevada.

April 12, 2002.

Rehearing Denied May 7, 2002.

Jeffrey A. Dickerson, Reno, for Appellant.

Douglas Roman Hill, Reno, for Respondents.

Before the Court En Banc.

OPINION

SHEARING, J.

In these appeals, we are asked to recognize a common law tortious discharge action based upon alleged racial discrimination. Under NRS 613.330(1), the Nevada Legislature has provided a remedy for racial discrimination in employment only to those who work for employers with fifteen or more employees. Since we must respect the legislature's limitation, we decline to recognize a common law cause of action for employment discrimination based on race, even when the employer has fifteen employees or less. Additionally, we agree with the district court's conclusion that 42 U.S.C. § 1985(3) does not provide a cause of action for employment discrimination. Thus, we affirm the district court's order granting respondents summary judgment. We further conclude that the district court properly awarded attorney fees to respondents under NRCP 68 and NRS 17.115.

FACTS

In 1995, appellant Miguel Chavez began working for respondent ProSource Sales & Marketing as an at-will employee. Gail Sievers, owner and president of ProSource, stated that she had known Chavez from a previous employer and had sought him out to work for her company. Sievers also insisted that she was fully aware of Chavez's ethnicity at the time she hired him. According to Sievers, Chavez was fired on August 15, 1997, for incompetence. At the time Chavez was fired, he had attained the position of warehouse manager.

Thereafter, Chavez filed a complaint against respondents (ProSource, Sievers, and ProSource general manager Todd Hunt) asserting that he was wrongfully terminated from his job on the basis of his race. Chavez's claims for relief included assault, intentional infliction of emotional distress, and tortious discharge. Chavez later amended the complaint to include a claim for violation of his civil rights under Title VII of the Civil Rights Act of 1964.¹

In his complaint, Chavez contended that he worked in an environment hostile to Hispanics. Specifically, Chavez contended that Sievers referred to Hispanic employees as "stupid," and was demeaning toward them in the workplace. Moreover, Chavez asserted that Hunt once referred to him as a "f___ing Mexican moron." Chavez also claimed that on another occasion Hunt said, "Mexicans are stupid," and allegedly burped into Chavez's face. Chavez further maintained that Sievers tolerated Hunt's openly racist conduct toward the Hispanic employees.

Respondents moved the district court for summary judgment on the basis that the company does not employ fifteen or more employees and is therefore not subject to the federal laws regarding employment discrimination, or NRS 613.330, governing unlawful employment practices. Moreover, respondents contended that Nevada case law does not support a cause of action for intentional infliction of emotional distress and tortious discharge when the termination is allegedly for racial reasons. Chavez opposed the motion, and again moved to amend the complaint to include a claim for conspiracy against Sievers and Hunt under 42 U.S.C. § 1985(3). Chavez also sought an extension to continue discovery on the number of ProSource employees. The district court granted Chavez's motion to amend and granted a ninety-day continuance. In an amended complaint, Chavez added a claim that Sievers and Hunt conspired under 42 U.S.C. § 1985(3) to deprive him of equal protection under the Fourteenth Amendment to the United States Constitution. He also withdrew the assault and Title VII claims. Respondents renewed their motion for summary judgment, and the district court granted the motion.²

Respondents then moved the district court for attorney fees under NRCP 68 and NRS 17.115. During the proceedings, four separate offers of judgment had been made. Chavez made the first offer of judgment in the amount of $9,999.00. Thereafter, respondents made three separate offers of judgment that Chavez rejected. Each offer was in the amount of $1,001.00. The district court granted respondents' motion for attorney fees based on Chavez's rejection of these offers. Chavez then appealed.

DISCUSSION

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.³ "A genuine issue of material fact is one where the evidence is such that a reasonable jury could return a verdict for the non-moving party."⁴ The evidence is viewed in the light most favorable to the non-movant.⁵ We review summary judgment anew.⁶

Employment discrimination

Under Nevada's employment discrimination statute, it is unlawful for an employer "to discharge any person, or otherwise to discriminate against any person with respect to his compensation, terms, conditions or privileges of employment, because of his race, color, religion, sex, sexual orientation, age, disability or national origin."⁷ The statute defines "employer" as "any person who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year."⁸

Chavez concedes that respondent ProSource employs fewer than fifteen employees and that he does not have an action under federal or state discrimination statutes. Nevertheless, Chavez urges this court to recognize a common law tortious discharge cause of action when an employee is discharged allegedly because of race. Although we recognize that racial discrimination is fundamentally wrong and undoubtedly against Nevada's public policy,⁹ we are constrained by the legislature's decision to address the issue through legislation and to provide statutory remedies for only certain employees.¹⁰

The Nevada Legislature has provided that the remedies for racial discrimination in employment are limited to employees who work for employers with fifteen or more employees. The legislature sets the public policy of this state regarding racial discrimination in employment. Since the legislature determined that small businesses should not be subject to racial discrimination suits, we decline to create an exception to the at-will doctrine for alleged racial discrimination at these businesses.¹¹

The concurring justices contend that the employment discrimination statute violates the equal protection clauses of both the federal and state constitutions.¹² They insist that no rational basis exists for the legislature to recognize the difference in the economic impact of litigation between "large" and "small" businesses and to limit the statutory remedy to "large" businesses on that basis. Chavez has not challenged the employment discrimination statute on constitutional grounds.¹³ Even so, the legislature is free to make the distinction between large and small businesses.¹⁴

Section 1985(3)

Under 42 U.S.C. § 1985(3), if two or more people conspire, for the purpose of depriving, either directly or indirectly, any person the equal protection of the laws or equal privileges and immunities under the law, the party deprived may have an action for the recovery of damages against the conspirators. A complaint asserting a cause of action under § 1985(3) must allege with particularity that the defendants conspired to carry out a deprivation of equal protection, or equal privileges and immunities, and were motivated by some racial or otherwise invidiously discriminatory animus.¹⁵ Section 1985(3) is not intended to apply to all tortious, conspiratorial interferences with the rights of others.¹⁶ Moreover, a § 1985(3) claim may not be brought to redress violations of employment rights created by Title VII.¹⁷

The United States Supreme Court has concluded that § 1985 "creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section."¹⁸ Therefore, whether a § 1985(3) remedy is available depends on whether a federally-established right to equal protection under the law or the equal enjoyment of privileges and immunities of citizenship has been violated, and whether a remedial framework for the violation of that right already exists.¹⁹

Chavez contends that the district court erred in granting respondents' motion for summary judgment after determining that a claim under § 1985(3) did not exist. The district court concluded that Chavez failed to establish that there was a conspiracy by respondents to do anything unlawful, and that § 1985(3) does not provide a cause of action for employment discrimination. We agree. The record supports the district court's determination that Chavez failed to establish that there was a genuine issue for trial concerning respondents' alleged conspiracy under § 1985(3). Moreover, respondents demonstrated that they were legally entitled to judgment, because § 1985(3) creates no rights; it is only a remedial statute. Thus, the district court did not err in granting respondents' motion for summary judgment as to the § 1985(3) cause of action.

Attorney fees

NRCP 68 and NRS 17.115 govern offers of judgment and provide that the district court may award attorney fees to a party who makes an offer of judgment when the offeree rejects the offer and the judgment ultimately obtained by the offeree is less favorable than the offer. NRCP 68(c)(1) and NRS 17.115(6) allow for a joint offer made by multiple offerors. Whether to award attorney fees, pursuant to NRCP 68 and NRS 17.115, lies within the discretion of the district court.²⁰ When exercising this discretion, the district court is...