Nelson v. Crimson Enterprises, Inc.

• Citation: 777 P.2d 73
• Decision Date: 11 July 1989
• Docket Number: No. 88-299,88-299
• Parties: 112 Lab.Cas. P 56,077, 4 IER Cases 914 Allen S. NELSON, Appellant (Plaintiff), v. CRIMSON ENTERPRISES, INC., a Georgia corporation, and Thomas W. Durant, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 73

777 P.2d 73

112 Lab.Cas. P 56,077, 4 IER Cases 914

Allen S. NELSON, Appellant (Plaintiff), v. CRIMSON ENTERPRISES, INC., a Georgia corporation, and Thomas W. Durant, Appellees (Defendants).

No. 88-299.

Supreme Court of Wyoming.

July 11, 1989.

Jack Gage of Whitehead, Gage & Davidson, P.C., Cheyenne, for appellant.

Paul J. Hickey and John M. Walker of Hickey & Evans, Cheyenne, for appellees.

Before CARDINE, C.J., THOMAS, MACY and GOLDEN, JJ., and BROWN, Ret. J.

BROWN, Justice, Retired.

In his wrongful termination action, appellant Allen S. Nelson contends that he was fired by his employer because he made a telephone call to the Waste, Fraud and Abuse Hotline at Francis E. Warren Air Force Base. Appellees state that Nelson was fired for insubordination. The trial court granted appellees' summary judgment and this appeal followed.

Appellant states the following issues:

1. Can a Wyoming employee state a cause of action for wrongful termination based upon a public policy exception to the employment at will doctrine?

2. If the answer to No. 1 is either "no" or in the alternative this court does not choose to decide this question at this time, can a civilian employee working for a United States Department of Defense contractor state a cause of action for wrongful termination based upon the language of 10 U.S.C. § 2409?

3. Assuming that the answer to either numbers 1 or 2 is yes, under the facts of this case, is there a genuine issue as to any material fact so that the trial court erred in granting defendants' motion for summary judgment?

4. Did the trial court err when it failed to grant plaintiff's motion for partial summary judgment, on the question of plaintiff's wrongful termination which plaintiff contended had been determined by the State Unemployment Commission?

We will affirm.

Appellant (Nelson) was employed at Francis E. Warren Air Force Base by a government defense contractor, Crimson Enterprises, Inc. (Crimson), and worked under the supervision of Thomas Durant (Durant). His employment by Crimson lasted from May 1983 until his termination on December 30, 1987. Events pertinent to this appeal transpired on December 30, 1987 as follows: A considerable amount of snow had fallen by the time Nelson went to work. He parked his car in front of the home of a base resident who had cleared snow to park a personal vehicle. The base resident called the Crimson office and asked that the Nelson vehicle be moved from the shoveled-out parking place. Durant said that he would arrange to have that done. Durant contacted a co-worker of Nelson's to convey the message that the vehicle should be moved, but Nelson did not comply with that request. After the lunch hour, Durant found Nelson and personally directed him to move his vehicle.

Nelson drove the company vehicle back to the office at a high rate of speed. He parked, shoveled out another area of snow, and moved his vehicle to the newly cleared area. Durant berated Nelson for shoveling snow on company time and Nelson retorted that he had shoveled snow for an hour that morning without recompense. Durant then directed the secretary to pay Nelson for an hour overtime.

When Nelson moved his vehicle, he went in and out of the office getting parts and slamming the door. Durant ordered him not to slam the door anymore and, ultimately, Nelson went into Durant's office where they had a loud and hostile confrontation. Durant told Nelson to get back to work or get his tools and leave. Nelson left Durant's office and, using a telephone at the desk of Durant's secretary, Dee Velasquez, called the base information operator and asked for the Waste, Fraud and Abuse Hotline number. ¹ In his testimony, Nelson stated that he did call the Waste, Fraud and Abuse Hotline and talked to the answering service saying, "I want to report some waste, fraud and abuse, my name is Scott Nelson and my phone number is 634-6420."

Neither Dee Velasquez nor Craig Hanesworth, who was also in the outer office, heard an alleged second call, although they heard the first call when Nelson asked for the "Waste, Fraud and Abuse Hotline" number.

Nelson returned to work but was called back to the office late in the afternoon and given a letter of termination for insubordination. Between the time Nelson left the office and was called back and terminated, Durant called the Department of Labor to inquire if he could fire Nelson.

Nelson subsequently filed an application with the State of Wyoming Unemployment Commission (Commission) which Crimson contested. Nelson's claim for unemployment payments went to hearing before the Commission and the Commission hearing officer determined that Nelson was not fired for cause. The hearing officer's decision was appealed by Crimson and affirmed by the Commission.

An "at-will" employee may be discharged at any time and for any reason or for no reason. In Rompf v. John Q. Hammons Hotels, Inc., 685 P.2d 25, 27 (Wyo.1984), this court stated: "[E]mployment for an indefinite period may be terminated by either party at any time and for any reason without incurring liability." See also Siebken v. Town of Wheatland, 700 P.2d 1236, 1237 (Wyo.1985); Lukens v. Goit, 430 P.2d 607, 611 (Wyo.1967); Long v. Forbes, 58 Wyo. 533, 136 P.2d 242, 246 (1943); Casper National Bank v. Curry, 51 Wyo. 284, 65 P.2d 1116, 1120-21 (1937). Nelson concedes that he was an "at-will" employee.

This court has recognized limited exceptions to the at-will relationship. However, those exceptions are not applicable to this appeal. Griess v. Consolidated Freightways, 776 P.2d 752; Leithead v. American Colloid Co., 721 P.2d 1059 (Wyo.1986); Alexander v. Phillips Oil Co., 707 P.2d 1385, 1387-89 (Wyo.1985) and Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702, 704 (Wyo.1985).

Appellant urges this court to: (1) Adopt a "public policy" exception to the employment-at-will doctrine; ² (2) adopt the doctrine of an implied duty of good faith and fair dealing in the employment agreement; ³ and (3) recognize a cause of action created by 10 U.S.C. § 2409 (Supp. V 1987) which states in part:

An employee of a defense contractor may not be discharged, * * * as a reprisal for disclosing to * * * the Department of Defense * * * information relating to a substantial violation of law relating to a defense contract * * *.

If this court should adopt any of the theories urged by Nelson, appellees then urge that we adopt the doctrine of "dual motive," succinctly stated in Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119, 122 (1978):

[E]ven when an important public policy is involved, an employer may discharge an employee if he has a separate, plausible, and legitimate reason for doing so.

In this case we need not adopt nor refuse to adopt any of the theories or doctrines urged by Nelson. He has not shown specific facts demonstrating that a genuine issue of material fact exists under any of the three theories he suggests.

In Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987), we held:

A motion for summary judgment places an initial burden on the movant to make a prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law. Rule 56(c), Wyoming Rules of Civil Procedure. Once a prima facie showing is made, the burden shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact does exist. England v. Simmons, Wyo., 728 P.2d 1137, 1140-1141 (1986). We analyze challenges to a grant of summary judgment by reviewing the record in a light most favorable to the party opposing the motion giving him all favorable inferences that can be drawn from the facts. Id. Conclusory statements or mere opinions are insufficient, however, to satisfy an opposing party's burden. Jones Land & Livestock Co. v. Federal Land Bank of Omaha, Wyo., 733 P.2d 258, 263 (1987).

Evidence opposing a summary judgment that is conclusory or speculative is insufficient and the trial court has no duty to anticipate possible proof. Gates v. Life of Montana Insurance Company, 196 Mont. 178, 638 P.2d 1063, 1066 (1982).

Apparently Nelson does not contend that Durant did not have cause to fire him; but rather contends that a later improper motive to fire Nelson developed. In his reply brief, Nelson states:

If Durant had fired Nelson during the confrontation, then Nelson would not have a cause of action.

Nelson also says:

[O]f course, Nelson can be fired for talking in a derogatory manner to Durant. If Durant had fired Nelson on the spot, no argument.

Nelson contends, however, that there is a question to be resolved by the trier of fact: "Why did Durant fire Nelson?" The affidavits and depositions considered by the court, insofar as they touch on the reason for firing, indicate that Nelson was fired for insubordination and talking in a derogatory manner to Durant, his supervisor. No other reason is stated in the evidence before the district court. Appellees made a prima facie case showing that no genuine issue of material fact existed. The burden therefore shifted to Nelson to present specific facts showing that an issue did exist. Boehm, 748 P.2d at 704; Gates, 638 P.2d at 1063.

Nelson speculates that he was fired because of his telephone call to the "hot line." There is no evidence to support this suspicion. There is no evidence that Durant even knew about the "hot line" call, only speculation that he may have known. Mr. Hanesworth was in the outer office when Nelson made the call. In Hanesworth's deposition he was asked about Durant's knowledge of the "hot line" call.

Q. [Mr. Gage] Do you recall any discussion between Velasquez and Durant wherein they discussed the fact that Scott had called for the number for Waste, Fraud and Abuse?

A. No, sir.

Q. Do you recall any discussion between you and Velasquez--

A. No.

Q. --on that same subject? And you do recall any discussion between Durant and you...