Lihosit v. I & W, Inc.
| Decision Date | 17 January 1996 |
| Docket Number | No. 16285,16285 |
| Citation | 121 N.M. 455,1996 NMCA 33,913 P.2d 262 |
| Parties | , 11 IER Cases 1487 David F. LIHOSIT, Plaintiff-Appellant, v. I & W, INC., A New Mexico Corporation, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
David F. Lihosit (Lihosit) was employed as a truck driver by I & W, Inc. (I & W). In his complaint, Lihosit alleged I & W violated clear public policy by terminating him because he refused to return to work late at night to drive a truck in violation of state driving and hours-of-service regulations. I & W argued it did not have knowledge of this explanation for Lihosit's failure to return to work and, therefore, could not have discharged him in retaliation for his involvement in a protected activity.
The case comes to this Court on Lihosit's appeal of a summary judgment based on stipulated and undisputed facts. We affirm.
Lihosit's job with I & W was to drive a large tractor trailer transporting water, oil, and chemicals to oil rigs. These materials were to be delivered to the job site at any time it was necessary. After leaving work at 8:35 p.m. on May 13, 1991, Lihosit received a telephone call at home around 10:30 p.m. The call was from Artesia Answering Service, an independent business with which I & W contracted to relay messages to I & W employees. Ralph Lewis of Artesia Answering Service relayed a message to Lihosit to return to work within the hour because an I & W customer had lost circulation in an oil well and needed water. Reading the facts most favorably to the plaintiff, Lihosit told Lewis he was too tired to work and would be in the next morning at 7:00. Lihosit said Lewis twice replied, "This may be your job." Lihosit then told Lewis that any additional work on Lihosit's part would violate "hours-in-service" regulations.
While there is a dispute over what Lihosit told Lewis, there is no dispute that Lewis did not tell anyone associated with I & W that Lihosit declined to return to work because he was too fatigued and/or because it would violate any legal regulation. Lewis did tell Larry Richardson, Lihosit's supervisor at I & W, that after Lihosit was told to come back to work, Lihosit replied, Richardson was not informed of Lihosit's contention that further service on May 13 would have violated state law until Lihosit's unemployment compensation hearing on September 10, 1991.
The trial court set forth the following stipulated and undisputed facts in its order granting summary judgment:
A. David Lihosit's employment with I & W Inc. was terminated by Larry Richardson on May 14, 1991 as a result of Plaintiff's refusal to return to work in his capacity of a transport operator to assist in restoring drilling circulation to an I & W Inc. customer's well.
B. David Lihosit did not tell any employee of I & W Inc. on May 14, 1991, and, in particular Larry Richardson, the I & W Inc. employee who terminated David Lihosit's employment, the reason he alleges in his Complaint for his refusal to return to work, which refusal formed the sole basis for David Lihosit's termination.
C. No employee of I & W Inc., and in particular Larry Richardson, had actual knowledge on May 14, 1991 that David Lihosit had refused to return to work because he claimed that the return to work would have violated the hours of service regulations of the State as set out in N.M.S.A.1978 Sec. 65-3-11 (Repl.Pamp.1990) and Motor Carrier Safety (MCS) regulations 11:395, et seq., as alleged in the Complaint.
On May 14, 1991, I & W fired Lihosit for failing to return to work the previous night. On June 12, 1992, Lihosit sued I & W for retaliatory discharge, claiming he was fired because he refused to exceed the maximum number of driving hours allowed under New Mexico law. The district court granted summary judgment against Lihosit because the court found that I & W did not have knowledge of Lihosit's alleged reasons for failing to report to work and, therefore, the termination was not in retaliation for engaging in a protected activity.
In the absence of a contract between an employer and employee, New Mexico presumes employment is terminable "at-will." Hartbarger v. Frank Paxton Co., 115 N.M. 665, 668, 857 P.2d 776, 779 (1993), cert. denied, 510 U.S. 1118, 114 S.Ct. 1068, 127 L.Ed.2d 387 (1994). "An at-will employment relationship can be terminated by either party at any time for any reason or no reason, without liability." Id. New Mexico courts have, however, recognized an exception to this general rule when an employee is discharged in retaliation for engaging in an act favored by public policy. See Paca v. K-Mart Corp., 108 N.M. 479, 481, 775 P.2d 245, 247 (1989). "Consequently, an at-will employee may recover in tort when his discharge contravenes a clear mandate of public policy." Gutierrez v. Sundancer Indian Jewelry, Inc., 117 N.M. 41, 47, 868 P.2d 1266, 1272 (Ct.App.1993), cert. denied, 117 N.M. 121, 869 P.2d 820 (1994). Following generally recognized tort principles, an employee seeking to recover for retaliatory discharge must show a causal connection between his protected actions and his discharge. Shovelin v. Central N.M. Elec. Coop., 115 N.M. 293, 303, 850 P.2d 996, 1006 (1993).
Our Supreme Court considered the causation requirement in Chavez v. Manville Products Corp., 108 N.M. 643, 777 P.2d 371 (1989). In that case, Chavez was a longtime Manville employee who expressly refused to allow his name to be used in a corporate lobbying effort. The corporation nonetheless affixed Chavez's name to a mailgram addressed to a United States Senator which stated the undersigned employees, including Chavez, urged support of legislation favored by the corporation. When Chavez found out about the unauthorized use of his name, he angrily demanded an explanation. The following month, Chavez was notified by his overall supervisor, Loretta Turner, that he was being laid off for a month. Subsequently, Chavez was notified his job had been eliminated. Chavez was informed that only two foremen were now required and he was the worst of the three foremen currently employed.
The New Mexico Supreme Court reversed a directed verdict in Manville's favor and held that these facts presented a jury question as to whether Chavez's refusal to lobby Congress in support of his employer's position was the basis for a retaliatory discharge claim. Id. at 647-48, 777 P.2d at 375-76. The Supreme Court found it unnecessary to adopt a standard that would shift the burden to the employer once the employee introduced "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Id. at 648 n. 2, 777 P.2d at 376 n. 2. Rather, the Court recited in detail the extensive evidence which created a jury question on whether the discharge was in retaliation for Chavez engaging in a protected activity:
When we consider as true the following evidence presented by Chavez: that on April 4, the day after his refusal to participate in Manville's lobbying effort, Loretta Turner, said to be informed of the refusal, placed an unwarranted critical memo in Chavez' file concerning his unsafe use of certain equipment; that on the same day his immediate supervisor advised him that he had better be careful because "Loretta is after you"; that when Chavez requested an explanation from his immediate supervisor for the unauthorized use of his name in the lobbying effort, Manville, shortly thereafter, made a decision to terminate him; that after being "laid off" for a month he was advised that his job had been eliminated; that after his termination the number of production crews remained unchanged at two, and Chavez' supervisory position was taken by another employee who had for over five years been assigned to other duties; that Manville made no efforts to place Chavez, an employee of 20 years, in any other position, despite a company policy to the contrary, and instead listed him as being ineligible for future employment with Manville in any capacity, it was well within the province of the fact finder to reach an abiding conviction that the discharge was in response to his noncooperation with Manville's legislative agenda.
Id. at 648-49, 777 P.2d at 376-77.
We have no such facts in the case before us. There was no dispute in Chavez that the employee made it known to his supervisors well before the termination that he refused to support the employer's political activity. Here, however, it is stipulated that no such message was conveyed to anyone at I & W at any time before Lihosit was fired. Rather, on the record before us, the trial court found:
5. There is no dispute that the employer, I & W, Inc. and, in particular Larry Richardson, the employee who terminated the Plaintiff, did not have actual knowledge at the time he terminated the Plaintiff that the Plaintiff refused to return to work because his return to work would violate the hours of service regulations of the state, which refusal formed the sole basis for the Plaintiff's termination.
The Supreme Court in Chavez found sufficient evidence to create a jury question as to whether the employee was fired because of his protest over unauthorized political activity. Chavez did, however, recognize that retaliatory discharge is an intentional tort. Id. at 649, 777 P.2d at 377. Unlike Chavez, the issue here is whether I & W could have intentionally retaliated when it was unaware of Lihosit's position that he was...
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