Brown v. Eddie World, Inc. ( 2015 )

131 Nev., Advance Opinion 11
IN THE SUPREME COURT OF THE STATE OF NEVADA
KAREN BROWN, No. 63896
Appellant,
vs. FILED
EDDIE WORLD, INC.; AND APR 1 6 2015
STAGECOACH HOTEL AND CASINO,
TRACIE K. LINDEMAN
INC., CL MtQUR
Respondents. CHIEF DEPIITY CLERK
Appeal from a district court order granting a motion to dismiss
in a wrongful termination action. Fifth Judicial District Court, Nye
County; Kimberly A. Wanker, Judge.
Affirmed.
Law Office of Daniel Marks and Daniel Marks and Adam Levine, Las
Vegas,
for Appellant.
Stephens Gourley & Bywater and David A. Stephens, Las Vegas,
for Respondents.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PARRAGUIRRE, J.:
In this appeal, we must determine whether the district court
properly refused to recognize a new cause of action under the common law
doctrine of tortious discharge in violation of public policy. Specifically, we
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must decide whether a plaintiff can state a claim for third-party
retaliatory discharge, when that discharge tends to discourage reporting
violations of Nevada's gaming laws. While enforcing gaming laws is a
fundamental public policy in Nevada, we decline to recognize a common
law cause of action for third-party retaliatory discharge. Accordingly, we
affirm
FACTS AND PROCEDURAL HISTORY
Appellant Karen Brown was employed by respondent Eddie
World, Inc., as assistant manager of a nut and candy store. The store was
located on property owned by respondent Stagecoach Hotel and Casino,
Inc., and both respondent corporations (collectively, Stagecoach) were
under common ownership and management. Stagecoach knew that Brown
was engaged to Donald Allen. Brown does not allege that Stagecoach ever
employed Allen. Allen filed a complaint with the Nevada Gaming Control
Board (NGCB) regarding some of Stagecoach's slot machines. Shortly
after the NGCB informed Stagecoach that Allen filed the complaint,
Stagecoach began assigning Brown's job responsibilities to other
employees. Within weeks, Stagecoach terminated Brown's employment.
Brown filed a complaint in district court alleging that
Stagecoach terminated her employment in retaliation for Allen's
complaint to the NGCB and that discharging her was therefore tortious
and in violation of public policy. Stagecoach moved to dismiss Brown's
complaint for failure to state a claim pursuant to NRCP 12(10(5). The
district court granted Stagecoach's motion because Nevada has not
recognized a cause of action for third-party retaliatory discharge. Brown
now appeals
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DISCUSSION
On appeal, Brown asks this court to recognize, for the first
time, a common law cause of action for third-party retaliatory discharge.
For the reasons discussed herein, we decline to do so.
This court reviews de novo an order granting a motion to
dismiss for "failure to state a claim upon which relief can be granted."
NRCP 12(b)(5); Buzz Stew. LLC v. City of N. Las Vegas, 124 Nev. 224, 227-
28, 181 P.3d 670, 672 (2008). In doing so, we assume that all facts alleged
in the complaint are true, and we review all legal conclusions de novo.
Buzz Stew, 124 Nev. at 228, 181 P.3d at 672.
An at-will employee may generally "be properly discharged
without cause at the will of the employer." K Mart Corp. v. Ponsock, 103
Nev. 39, 42 n.1, 732 P.2d 1364, 1366 n.1 (1987), abrogated on other
grounds by Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990).
Nevertheless, "Fain employer commits a tortious discharge by terminating
an employee for reasons which violate public policy." DAngelo v. Gardner,
107 Nev. 704, 712, 819 P.2d 206, 212 (1991). Specifically, tortious
discharge "arises out of the employer-employee relationship," and we have
stated in dicta that tortious discharge occurs "when an employer dismisses
an employee in retaliation for the employee's, . . acts which are consistent
with. . . sound public policy and the common good." Id. at 718, 819 P.2d
at 216 (emphasis added). "[T]ortious discharge actions are severely
limited to those rare and exceptional cases where the employer's conduct
violates strong and compelling public policy." Sands Regent v.
Valgardson, 105 Nev. 436, 440, 777 P.2d 898, 900 (1989).
We have previously stated that Inio public policy is more
basic than the enforcement of our gaming laws." Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 293, 774 P.2d 432, 433 (1989); see also NRS
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463.0129(1) (stating that the gaming industry is essential to Nevada's
economy and welfare, and its success depends on "strict regulation").
Thus, it cannot be disputed that enforcing Nevada's gaming laws is a
sufficiently "strong and compelling public policy" to support a claim for
tortious discharge. Sands Regent, 105 Nev. at 440, 777 P.2d at 900; see
also Wiltsie, 105 Nev. at 293, 774 P.2d at 433.
Despite this fundamental public policy, we have yet to
determine whether a discharged employee may state a common law claim
for third-party retaliatory discharge. Accordingly, we "examine how other
jurisdictions have addressed the issue." Moon v. McDonald, Carano &
Wilson LLP, 129 Nev. Adv. Op. No. 56, 306 P.3d 406, 409 (2013).
Other courts have recognized causes of action for third-party
retaliatory discharges arising under federal statutes, but those decisions
depended upon broad language in the statutes themselves. See, e.g.,
Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174-75 (2011) (Title VII);
Kastor v. Cash Express of Tenn., LLC, F. Supp. 3d „ No. 3:14-
CV-432-JGH, 2015 WL 128051, at *3 (W.D. Ky. Jan. 8, 2015) (Family and
Medical Leave Act); Dembin v. LVI Servs., Inc., 822 F. Sapp. 2d 436, 438-
39 (S.D.N.Y. 2011) (Age Discrimination in Employment Act). In contrast
to the broad statutes involved in the aforementioned cases, common law
"tortious discharge actions are severely limited." Sands Regent, 105 Nev.
at 440, 777 P.2d at 900. Thus, the fact that some courts have recognized
statutory third-party retaliatory discharge claims does not persuade us to
recognize such claims at common law.'
1 Brownalso asks this court to overrule Pope v. Motel 6, wherein we
concluded that antiretaliation provisions in Nevada's discrimination
statutes do not create a statutory cause of action for third-party
continued on next page...
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We have only found one court that has squarely considered
whether to recognize a common law cause of action for third-party
retaliatory discharge. 2 See Bammert v. Don's Super Valu, Inc., 646
N.W.2d 365, 367 (Wis. 2002). In Bammert, the plaintiffs husband, a
police officer, assisted in the arrest of the plaintiffs employer's wife for
driving under the influence of alcohol, and the plaintiff was discharged
shortly thereafter. Id. Despite the compelling public policies "favoring the
stability of marriage" and "requiring the diligent pursuit and punishment
of drunk drivers," the court refused to recognize a common law cause of
action for third-party retaliatory discharge. Id. at 370-72. Such a cause of
action, the court explained, would "have no logical stopping point." Id. at
372. Therefore, the doctrine of tortious discharge in violation of public
policy would "remain narrow in scope." Id. We find this rationale
persuasive.
...continued
retaliatory discharge. 121 Nev. 307, 313-14, 114 P.3d 277, 281-82 (2005).
Brown relies upon Thompson, wherein the U.S. Supreme Court construed
a federal antiretaliation statute in Title VII. 562 U.S. at 174-75. Because
Brown alleges that her termination amounted to a common law tortious
discharge and does not allege that her termination violated a statute or
related to discrimination, we could recognize Brown's common law claim
without disturbing our holding in Pope. We therefore decline to overrule
Pope. See Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008)
(stating that this court will not overrule precedent "absent compelling
reasons for so doing").
2 Courts in Idaho and Louisiana have expressly declined to address
this issue. Edmondson v. Shearer Lumber Prods., 75 P.3d 733, 739 n.3
(Idaho 2003); Portie v. Devall Towing & Boat Serv., Inc., 634 So. 2d 1324,
1327 (La. Ct. App.), rev'd in part on other grounds by 637 So. 2d 1061 (La.
1994).
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Tortious discharge requires an "employer-employee
relationship." DAngelo, 107 Nev. at 718, 819 P.2d at 216. We have also
stated, albeit in dicta, that tortious discharge occurs "when an employer
dismisses an employee in retaliation for the employee's. . . acts." Id.
(emphasis added). The cases recognizing statutory third-party retaliatory
discharge claims have similarly involved retaliation for acts of other
employees. See Thompson, 562 U.S. at 174-75; Kastor, F. Supp. 3d at
, 2015 WL 128051 at *1, *3; Dembin, 822 F. Supp. 2d at 437-39. This
limitation is consistent with the rule that "tortious discharge actions are
severely limited," Sands Regent, 105 Nev. at 440, 777 P.2d at 900, and we
therefore adopt this limitation here. Here, Brown has not alleged that
Stagecoach ever employed Allen. Thus, this most basic requirement of an
employment relationship involving Allen, the person whose acts led to the
challenged retaliation, is not satisfied.
Moreover, as in Bammert, if we were to recognize Brown's
claim, the theory of third-party retaliatory discharge would "have no
logical stopping point." Bammert, 646 N.W.2d at 372. Allen was neither a
Stagecoach employee nor under any obligation to report perceived
violations of Nevada's gaming regulations to the NGCB. 3 Because
"tortious discharge actions are severely limited," Sands Regent, 105 Nev.
at 440, 777 P.2d at 900, we cannot countenance recognition of Brown's
common law claim for third-party retaliatory discharge.
3 The dissent in Bammert proposed recognizing a "narrow" cause of
action for third-party retaliatory discharges that arise from "police officers
acting lawfully in their capacity." 646 N.W.2d at 373 (Bablitch, J.,
dissenting). We neither consider nor decide whether to recognize such an
exception to the rule announced herein.
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CONCLUSION
Although enforcing gaming laws is indisputably a compelling
public policy in Nevada, we decline to recognize a common law cause of
action for third-party retaliatory discharge in violation of public policy.
Therefore, the district court properly dismissed the complaint for failure to
state a claim pursuant to NRCP 12(b)(5), and we affirm.
CCU- J.
We concur:
, CA.
Hardesty
tp-c C9 14:3 , J.
Douglas
Gibbons
firrykdA
Pickering
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