Gutierrez v. Sundancer Indian Jewelry, Inc.

• Decision Date: 16 December 1993
• Docket Number: No. 13767,13767
• Citation: 868 P.2d 1266,1993 NMCA 156,117 N.M. 41
• Parties: , 1994 O.S.H.D. (CCH) P 30,399 Paul GUTIERREZ, Plaintiff-Appellant, v. SUNDANCER INDIAN JEWELRY, INC., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1266

868 P.2d 1266

117 N.M. 41, 1994 O.S.H.D. (CCH) P 30,399

Paul GUTIERREZ, Plaintiff-Appellant, v. SUNDANCER INDIAN JEWELRY, INC., Defendant-Appellee.

No. 13767.

Court of Appeals of New Mexico.

Dec. 16, 1993.

Certiorari Denied Feb. 4, 1994.

[117 N.M. 42] David Proper, Garcia Law Offices, Albuquerque, for plaintiff-appellant.

David G. Reynolds, Crider, Calvert & Bingham, P.C., Albuquerque, for defendant-appellee.

OPINION

BLACK, Judge.

Paul Gutierrez ("Plaintiff") filed a discrimination complaint with the New Mexico Health and Environment Department, Occupational Health and Safety Bureau ("the Bureau"), alleging that he was discharged by Sundancer Indian Jewelry, Inc. ("Defendant") in retaliation for requesting that the Bureau investigate chemical usage and employee health problems at Defendant's workplace. The parties entered into a settlement agreement which was approved by the Bureau on January 11, 1990. On May 14, 1990, Plaintiff filed a complaint in district court seeking damages due to fraud and wrongful discharge. Defendant filed a motion for partial summary judgment arguing that Plaintiff's sole remedy for his claim of wrongful discharge was through the prior administrative claim brought before the Bureau. Defendant further argued that Plaintiff's claim for wrongful discharge was barred by the doctrine of accord and satisfaction. The district court entered a partial summary judgment holding that the settlement agreement approved by the Bureau settled Plaintiff's claim for wrongful discharge and therefore gave rise to an accord and satisfaction of the wrongful discharge claim set forth in Plaintiff's district court complaint. (Plaintiff voluntarily dismissed his fraud claim.) Plaintiff appeals.

We hold that the record presents questions of material fact precluding summary judgment on Defendant's accord and satisfaction theory; that Plaintiff's complaint states a common-law cause of action for wrongful discharge; and that the New Mexico Occupational Health and Safety Act, NMSA 1978, Secs. 50-9-1 to -25 (Repl.Pamp.1988 & Cum.Supp.1992) ("NMOHSA"), does not provide Plaintiff's exclusive remedy.

I. FACTS

Plaintiff originally contacted the Bureau to investigate the possibility that the use of certain chemicals at Defendant's workplace was causing Plaintiff, and other employees, to suffer chest pains and swollen lips. Plaintiff alleged that he was wrongfully discharged for reporting this safety condition.

After an investigation, the Bureau was apparently willing to file a suit on Plaintiff's behalf pursuant to Section 50-9-25. Plaintiff, however, settled the administrative proceeding by agreeing to have all information regarding his termination removed from Defendant's files and requiring that Defendant provide "neutral or better" references to anyone who inquired about Plaintiff's work history. Defendant also agreed to post in conspicuous locations in its workplace copies of a notice stating that Defendant would not discriminate against any employee for exercising such employee's rights under NMOHSA. The settlement further required that Defendant notify the Chief of the Occupational Health and Safety Bureau ("the Bureau Chief") in writing of all steps it had taken to comply with the settlement agreement. Finally, the settlement agreement provided that it was not to be used by Plaintiff or the Bureau as an admission of wrongdoing by Defendant.

Approximately five months after entering into the settlement agreement and terminating the administrative proceeding, Plaintiff filed a complaint in district court seeking damages due to fraud and wrongful discharge. In that complaint, Plaintiff alleged that he was a mechanic by trade and had been lured by Defendant from his mechanic position with promises of more pay and participation in a profit-sharing plan. He claimed that "[a]s a result of Plaintiff contacting OSHA Plaintiff was fired from his position at Sundancer Jewelry." Plaintiff contended that his discharge was wrongful and in violation of his right to seek compliance with safe working practices. In his amended complaint, Plaintiff requested both compensatory and punitive damages against Defendant.

After discovery, Defendant moved for partial summary judgment, arguing that since Plaintiff and Defendant were both parties to a disputed claim before the Bureau, which they had settled, the court could not go beyond the settlement. The district court entered the following findings:

2. Upon finding that Section [50-9-25] has been violated by an employer, OSHA has the power to institute a suit on behalf of the employee to obtain, inter alia, back pay and reinstatement of the employee to the job. OSHA itself, however, does not have the authority to adjudicate whether a termination was wrongful for purposes of collateral estoppel or res judicata. However, that does not mean that OSHA cannot help the employer and the employee to settle a Section [50-9-25] wrongful discharge claim.

3. The settlement agreement approved by OSHA was between the Plaintiff and the Defendant in this case. What was settled was Plaintiff's original complaint: that he had been discharged for making a complaint to OSHA. That is the same complaint Plaintiff makes in Count II of the Amended Complaint herein.

4. Based upon the foregoing, and upon the affidavits and evidence submitted to the Court, the settlement agreement was performed by Sundancer, giving rise to an accord and satisfaction of the claim set forth as Count II of the Amended Complaint.

The district court entered partial summary judgment dismissing Plaintiff's claim for wrongful discharge. Plaintiff then voluntarily dismissed Count I of his complaint (fraud) and brought this appeal.

II. THE RECORD RAISES QUESTIONS OF MATERIAL FACT PRECLUDING SUMMARY JUDGMENT ON THE ACCORD AND SATISFACTION THEORY

Defendant initially argues that since the district court did not find the terms of the settlement agreement ambiguous, reference to parol evidence of the parties' intent is inappropriate. Defendant relies upon cases from Mississippi and Maine to support its contention that "[t]he making of a settlement without express reservation of rights constitutes complete accord and satisfaction of all claims of the immediate parties to a settlement arising out of the same transaction or occurrence." We do not believe the rule adopted in Mississippi and Maine applies in New Mexico.

Our courts have been willing to go outside the simple terms of a settlement agreement to determine the nature of the transaction and scope of the intent of the parties regarding whether such agreement was intended to be an accord and satisfaction. See, e.g., Mark V, Inc. v. Mellekas, 114 N.M. 778, 781, 845 P.2d 1232, 1235 (1993) (in interpreting the intent of parties to a contract a court is not restricted to the bare words of the agreement and may consider context in which the agreement was made to determine whether the parties' words are ambiguous). An accord and satisfaction must be accompanied by such acts or declarations as amount to a condition that if money is accepted, it is to be in full satisfaction; and the acts or declarations must be of such character that the party to whom the money is offered is bound to understand that, if he accepts the money, he accepts it subject to such conditions. Los Atrevidos v. Preferred Risk Life Ins. Co., 107 N.M. 217, 218, 755 P.2d 61, 62 (1988). While such a showing could possibly be made from the settlement document itself, application of these principles more characteristically requires an investigation into the surrounding circumstances. See, e.g., Smith Constr. Co. v. Knights of Columbus, Council # 1226, 86 N.M. 50, 519 P.2d 286 (1974) (reversing summary judgment and holding that correspondence surrounding the execution of the agreement created doubt as to whether it was intended to operate as an accord and satisfaction).

The district court's determination that the agreement in the present case was unambiguous is reviewed as a matter of law. Levenson v. Mobley, 106 N.M. 399, 401, 744 P.2d 174, 176 (1987). An agreement is unambiguous when its language permits only one reasonable interpretation. See id. We do not agree with the district court that the settlement agreement is unambiguous.

The agreement is unclear concerning the extent or scope of the settlement. Paragraph One of the agreement refers to a separate settlement of Plaintiff's workers' compensation claim, thus raising an inference that the present agreement was intended to apply only to the matters specifically referred to therein. Other than the requirement that Defendant remove all negative information regarding Plaintiff's termination from Defendant's files and provide "neutral or better" references regarding Plaintiff's employment, the remainder of the settlement agreement appears to be directed at Defendant's compliance with obligations imposed by the Bureau to prevent discrimination against other potential whistleblowers. The agreement concludes: "[N]or shall this Settlement Agreement be used by Gutierrez or the Environmental Improvement Division against Sundancer, in any way, except for enforcement of the terms and conditions hereof." It could be inferred that Defendant anticipated further action by either the Bureau or Plaintiff and sought to prevent the settlement agreement from being used as any evidence of wrongdoing. If further action was anticipated, then it is unlikely that the parties intended the settlement agreement to be an accord and satisfaction.

Other documents introduced in the present case appear analogous to those found insufficient to sustain a summary judgment in Smith Construction. In support of its motion for partial summary judgment, Defendant filed Plaintiff's entire personnel file as well as the complete Bureau file. The Bureau's file consists of 130 pages of correspondence, memoranda, diagrams, and notices. A review of such documents could lead to the...