McGarvey v. Key Property Management LLC

• Decision Date: 01 July 2009
• Docket Number: No. S-08-0194.,S-08-0194.
• Citation: 2009 WY 84,211 P.3d 503
• Parties: Deborah McGARVEY, Appellant (Plaintiff), v. KEY PROPERTY MANAGEMENT LLC, and Bicentennial Village Associates LLC, Appellees (Defendants).
• Court: Wyoming Supreme Court

211 P.3d 503

2009 WY 84

Deborah McGARVEY, Appellant (Plaintiff), v. KEY PROPERTY MANAGEMENT LLC, and Bicentennial Village Associates LLC, Appellees (Defendants).

No. S-08-0194.

Supreme Court of Wyoming.

July 1, 2009.

Representing Appellant: Timothy Kingston, Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Representing Appellees: Kathleen Dixon and Patrick Dixon, Chapin & Dixon, LLP, Casper, Wyoming. Argument by Mr. Dixon.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Deborah McGarvey filed a wrongful termination suit against her employer, claiming that she was discharged from her job for reasons that violate public policy. The district court granted summary judgment for the employers, ruling that Ms. McGarvey had not presented facts necessary to sustain her cause of action. Ms. McGarvey challenges that decision. We will affirm.

ISSUES

[¶ 2] Ms. McGarvey states these issues:

1. Does or should Wyoming recognize a "free speech" exception to the at-will employment doctrine?

2. Was the Appellant fired in violation of her right to free speech?

3. Did the lower court commit reversible error when it held that the Appellant's free speech claim was barred because her speech had the potential to cause economic harm to her employer?

FACTS

[¶ 3] Bicentennial Village Associates LLC is a non-profit affordable housing organization. It owned a housing complex in Rock Springs, Wyoming, that provided housing to low-income residents, particularly elderly and disabled persons. Key Property Management LLC acted as the management company for the property. Ms. McGarvey worked as a manager at the housing complex.¹

[¶ 4] While planning renovations to the facility in 2004 and early 2005, company representatives met with residents and staff to discuss the renovations. The Mayor of Rock Springs also attended. Company representatives provided assurances that the renovation would cause minimal disruptions. In particular, Ms. McGarvey recalled company representatives stating that interference with the residents' daily lives would be avoided, that no one would be displaced overnight from any apartment, and that residents' personal property would be safeguarded during the renovations. In addition, company representatives reportedly stated that no one currently living in the housing complex would be forced to move because of changes to the low-income qualifications for the facility.

[¶ 5] The renovations began in the spring of 2005, and according to Ms. McGarvey, they did not proceed smoothly. Delays and other problems displaced some residents from their apartments overnight. Crews did not complete work on one apartment before beginning work on the next, making it difficult or impossible for residents to use their apartments. Some residents' personal possessions were left unguarded outside the building. Work crews left used appliances, construction debris, and trash at the site, raising Ms. McGarvey's concerns about the safety of the residents. In addition, Ms. McGarvey learned that some residents might not meet the low-income qualifications and requirements, and could be forced to move from the facility.

[¶ 6] Ms. McGarvey related that she brought these problems and concerns to the attention of company representatives several times over a period of several months, but that she was unsuccessful in effecting any improvements or changes. One day, "on the spur of the moment," she decided to organize a meeting in which residents could bring their problems to the attention of the Mayor of Rock Springs. This meeting took place at the housing complex during regular business hours, and Ms. McGarvey and several residents explained their problems and concerns to the Mayor. According to both Ms. McGarvey and the Mayor, as a result of the meeting and follow-up actions, many of the concerns and problems were eliminated or alleviated.

[¶ 7] Ms. McGarvey maintains that her motive in organizing this meeting was to assist and protect the residents of the housing complex. Because we are reviewing a grant of summary judgment against Ms. McGarvey, we consider the facts in a light most favorable to her position. See infra ¶ 10. At the same time, we cannot ignore undisputed facts just because they are less favorable to her position. It is undisputed that Ms. McGarvey did not inform her employers of the meeting or invite them to attend. They were not afforded an opportunity to respond to or defend themselves from the accusations the residents and Ms. McGarvey presented to the Mayor. Because the housing complex received tax credits and other government benefits for serving low-income residents, it was important for the employers to maintain good relations with local government officials. Ms. McGarvey was aware of that fact. Yet during the meeting with the Mayor, Ms. McGarvey either stated, or agreed with the statement, that her employers had lied to the Mayor. As Ms. McGarvey has admitted, she knew that the meeting she organized and the discussions that occurred were potentially harmful to her employers and their legitimate business interests.

[¶ 8] Shortly after the meeting, Ms. McGarvey received an "Employee Warning Notice" from her supervisor, stating that she had held an "unauthorized tenant meeting" that she knew "would be harmful to the company." Several days later, Ms. McGarvey was fired. She claimed that she was discharged because of her meeting with the residents and the Mayor, because of what she had said at that meeting, and because she had "undermined" the interests of her employers.

[¶ 9] Her employers maintained that there were other legitimate reasons for their decision to terminate Ms. McGarvey's employment. They contend that, despite their instructions, she failed or was unable to complete the forms needed to qualify residents to continue living in the low-income housing facility. In addition, Ms. McGarvey's son had been hired to perform maintenance work at the facility. Some people complained about the son's work habits, and during one visit to the apartment complex, a representative of the employers observed that the son was not working while he was on duty. The employers instructed Ms. McGarvey to discharge her son. She did not do so, but the next day, organized the meeting with residents and the Mayor. Again, however, our standard of review requires us to view the evidence in Ms. McGarvey's favor, and at this point we accept her allegations that she was discharged solely based on the meeting with residents and the Mayor. Even based on these allegations, however, the district court ruled that she had not established facts sufficient to sustain her cause of action, and granted summary judgment against her. She has appealed that decision.

STANDARD OF REVIEW

[¶ 10] Our review of a district court's decision to grant summary judgment follows a familiar course:

When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.

Nowotny v. L & B Contract Indus., 933 P.2d 452, 455 (Wyo.1997).

DISCUSSION

[¶ 11] Ms. McGarvey and her employers agree that she was an at-will employee. Wyoming has long adhered to the employment-at-will doctrine, under which "employment for an indefinite period may be terminated by either party at any time and for any reason without incurring liability." Rompf v. John Q. Hammons Hotels, 685 P.2d 25, 27 (Wyo.1984). There are, however, exceptions to the employment-at-will doctrine. In particular, we have recognized that an employer may incur tort liability if it discharges an employee for reasons that violate public policy. This exception has been recognized because "allowing [such] a discharge to go unredressed would leave a valuable social policy to go unvindicated." Allen v. Safeway Stores Inc., 699 P.2d 277, 284 (Wyo.1985).

[¶ 12] The district court accurately observed that this exception applies only in "rare" cases.

As our previous jurisprudence has shown, this Court has steadfastly resisted judicially creating any exceptions to the doctrine of at-will employment in this state.... We have recognized a limited exception to the at-will employment doctrine to the extent that an employee may not be terminated for a reason that violates public policy. This public policy exception is narrow in scope to avoid unreasonably eliminating employer discretion in terminating at-will employees.

McLean v. Hyland Enterprises, Inc., 2001 WY 111, ¶¶ 22-23, 34 P.3d 1262, 1268 (Wyo. 2001). The narrow scope of the public policy exception is illustrated by the fact that, to date, there has been only one case in which this Court concluded that an employee could maintain a claim of wrongful termination in violation of public policy. Griess v. Consolidated Freightways Corp., 776 P.2d 752, 754 (Wyo.1989) (discharge for exercising the right to seek workers' compensation benefits).

[¶ 13] Given our previous jurisprudence, it is apparent that Ms. McGarvey faced a daunting task when she urged the district court to recognize a public policy exception for an employee who is discharged for exercising rights of free speech. A person alleging that her employment was terminated in violation of public policy must satisfy two requirements in order to maintain a wrongful discharge claim. She must demonstrate that: "(1) The discharge...