Gormley v. Coca-Cola Enterprises

• Decision Date: 16 December 2003
• Docket Number: No. 22,722.,22,722.
• Citation: 135 N.M. 128,85 P.3d 252,2004 NMCA 21
• Court: Court of Appeals of New Mexico
• Parties: Don GORMLEY, Plaintiff-Appellant, v. COCA-COLA ENTERPRISES, Defendant-Appellee.

85 P.3d 252

135 N.M. 128

2004 NMCA 21

Don GORMLEY, Plaintiff-Appellant, v. COCA-COLA ENTERPRISES, Defendant-Appellee.

No. 22,722.

Court of Appeals of New Mexico.

December 16, 2003.

Certiorari Granted January 26, 2004.

W.T. Martin, Jr., Law Offices of W.T. Martin, Jr., P.A., Carlsbad, NM, for Appellant.

Christopher M. Moody, Anne Marie Turner, Noeding & Moody, P.C., Albuquerque, NM, T. Harold Pinkley, Miller & Martin LLP, Nashville, TN, for Appellee.

Certiorari Granted, No. 28,441, January 26, 2004.

OPINION

CASTILLO, Judge.

{1} Don Gormley (Plaintiff) appeals the district court's grant of summary judgment on his claims of breach of implied employment contract, constructive discharge, age discrimination, and disability discrimination. We reverse in part and remand on the sole issue of breach of contract for duties and hours.

I. BACKGROUND

{2} Plaintiff was employed by Southwest Coca-Cola (Southwest) at its Hobbs, New Mexico, facility beginning in 1983. For approximately ten years, Plaintiff was a route driver and deliveryman, a job requiring manual labor and lifting. Around 1994, at age fifty-eight, Plaintiff was assigned to a warehouse position, in which he performed lighter duties, including loading and checking in trucks, doing janitorial work, performing cashier duties, making bank deposits, filling out paperwork, going to the post office and bus station, getting gas for the forklifts, stacking shelves, and cleaning the trailers of trucks. He had not complained about the work he had been doing on the truck route.

{3} Plaintiff presented deposition testimony of Robert Bolin, regional manager for Southwest at the time of Plaintiff's assignment to the warehouse. In his testimony about the transfer, Bolin explained that at the time, Plaintiff was healthy and "running the route okay" but management was concerned that Plaintiff might be hurt in the future because of his age and workload. Bolin testified that Plaintiff was to continue with fifty-five hours of work per week after his assignment to the warehouse so that Plaintiff would make the same amount he was making as a route driver. Bolin also testified that he discussed with Plaintiff leaving him "in that position until he was ready to retire." Plaintiff testified that Bolin guaranteed him fifty-five hours of work per week and that Bolin "just wanted to make sure that I want to stay with Coke as long as I could, until I got ready to retire, and he didn't want me to get [hurt by] lifting heavy stuff."

{4} In June 1998, Coca-Cola Enterprises (Defendant) acquired Southwest by merger; Defendant acknowledged in oral argument that all of Southwest's legal obligations were assumed through the merger. For a brief period of time after the merger, Plaintiff continued with his "same [warehouse] duties" and with the "same hours." Around July 1998, however, Plaintiff's new supervisor, Ruben Cardona, reduced Plaintiff's hours by five and made it clear that Plaintiff was no longer guaranteed fifty-five hours of work per week. Plaintiff did not protest this decision. Defendant subsequently further decreased Plaintiff's hours and changed certain of his job duties. Plaintiff submitted a letter of resignation to Defendant on August 21, 1999, to be effective September 17, 1999. Plaintiff never received written reprimands or discipline concerning his job performance from Southwest or from Defendant. {5} In May 2000, Plaintiff filed his initial complaint against Defendant, setting forth his contract and constructive discharge claims and alleging that Defendant's conduct violated public policy against age discrimination, as articulated in the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2003) (Act). Plaintiff did not file a grievance with the Human Rights Commission, as provided for under the Act. See § 28-1-10. In his complaint, Plaintiff sought reinstatement and damages. On March 9, 2001, Defendant filed a motion for summary judgment on all of Plaintiff's claims. Six days later, Plaintiff filed a motion to amend his complaint to add a count for discrimination, based on perceived disability and failure to continue to reasonably accommodate. The district court granted partial summary judgment on the claims of breach of implied contract, constructive discharge, and age discrimination. The district court later granted summary judgment on Plaintiff's disability discrimination claim, finding that the claim did "not sound in common law tort" and that Plaintiff was required first to pursue the administrative procedure under the Act.

II. DISCUSSION

A. Standard of Review

{6} Summary judgment is proper where there is no evidence raising a reasonable doubt that a genuine issue of material fact exists. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, ¶ 9, 124 N.M. 633, 954 P.2d 65. "When reviewing a [district] court's grant of summary judgment, we view the facts in the light most favorable to the party opposing summary judgment, drawing all inferences in favor of that party." Stieber v. Journal Publ'g Co., 120 N.M. 270, 271-72, 901 P.2d 201, 202-03 (Ct.App.1995).

B. Plaintiff's Claims

{7} Plaintiff's claims can be divided into those alleging discrimination and those related to an implied contract of employment. We address these issues in turn.

1. Age and Disability Discrimination Claims

{8} We agree with the district court that Plaintiff's age and disability claims must be pursued under the administrative procedures available in the Act and do not lie in common law tort. We have permitted employees to pursue claims without filing a human rights complaint under three tort theories: retaliatory discharge, Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 445, 872 P.2d 859, 863 (1994); intentional infliction of emotional distress, Phifer v. Herbert, 115 N.M. 135, 139, 848 P.2d 5, 9 (Ct.App.1993), overruled on other grounds, Spectron Dev. Lab. v. Am. Hollow Boring Co., 1995-NMCA-025, ¶¶ 31-32, 123 N.M. 170, 936 P.2d 852

; and prima facie tort, Beavers v. Johnson Controls World Servs., Inc., 120 N.M. 343, 351, 901 P.2d 761, 769 (Ct.App.1995). At oral argument, Plaintiff acknowledged that he is not pursuing any of these tort theories. Instead, he requests that we create new torts for age discrimination and disability discrimination. We decline to accede to this request.

{9} Plaintiff bases his request on a broad reading of Phifer, in which this Court held that the plaintiff could pursue a sexual discrimination claim outside of the Act. Phifer, 115 N.M. at 139, 848 P.2d at 9. Because a sexual discrimination claimant need not exhaust administrative remedies under the Act, Plaintiff contends, neither should one raising age and disability discrimination claims. We decline to interpret Phifer so broadly. The Phifer case was not decided on the basis of the sexual discrimination claim but rather on the basis that the allegations of sexual discrimination were sufficient to support a separate claim for intentional infliction of emotional distress. Id. As conceded by Plaintiff, his complaint is insufficient to support a claim for intentional infliction of emotional distress or claims for retaliatory discharge or prima facie tort.

{10} At oral argument, Plaintiff also pointed this Court to a memorandum opinion, Andazola v. Northern Automotive Corp., No. 18,708 (N.M.Ct.App. Nov. 13, 1997) (unpublished opinion), in support of his argument. While an unpublished opinion of this Court is of no precedential value, it may be presented to this Court for consideration if a party believes it persuasive. Rule 12-405(C) NMRA 2003; State v. Gonzales, 110 N.M. 218, 227, 794 P.2d 361, 370 (Ct.App.1990). We do not find it persuasive, however. At issue in Andazola was whether exhaustion of administrative remedies under the Act is a prerequisite to proceeding with an independent tort claim. Andazola, No. 18,708, slip op. at 1. We reiterated in that opinion that exhaustion is not a prerequisite, and we allowed the plaintiff to pursue his intentional infliction of emotional distress and prima facie tort claims. Id. at 2. But Plaintiff here is not pursuing one of those tort claims; and we do not read Andazola as supporting the creation of new independent torts of discrimination, as sought by Plaintiff.

{11} We decline to permit employees to pursue age and discrimination claims outside of the Act that do not contain allegations sufficient to meet the elements of retaliatory discharge, intentional infliction of emotional distress, prima facie tort, or other existing independent torts. To do so would eviscerate the Act our legislature adopted. Because we conclude that Plaintiff must pursue the administrative remedies contained in the Act, we do not determine the substance of his discrimination argument. We hold that the district court did not err in granting summary judgment on the discrimination claims.

2. Constructive Discharge

{12} Plaintiff alleges that he was constructively discharged in violation of an implied employment contract with Defendant. Constructive discharge is a prerequisite to a wrongful termination claim when an employee, such as Plaintiff, resigns. See Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 472 (4th Cir.2002)

(stating that in order to establish wrongful termination, employee must show she was discharged in the first place); Karch v. BayBank FSB, 147 N.H. 525, 794 A.2d 763, 774 (2002) (holding that "properly alleging constructive discharge satisfies the termination component of a wrongful discharge claim"); Pitka v. Interior Reg'l Hous. Auth., 54 P.3d 785, 790 (Alaska 2002). Plaintiff's complaint is not as clear as would be preferred, but we will read it broadly to conclude that the allegations regarding constructive discharge are meant to satisfy the termination element of a claim of breach of implied contract to terminate for just cause only. See Phifer, 115 N.M. at 138, 848 P.2d at 8 (reiterating that pleadings may be...