DocketNumber： Nos. 90-15424, 90-15460 and 90-15623
Judges： Boochever, Kozinski, Scannlain
Filed Date： 3/12/1992
Status： Precedential
Modified Date： 10/19/2024
Plaintiffs, 37 dealers at Hilton’s Las Vegas casino, were terminated as they came off their shifts on September 2 and 3, 1983. They sued and obtained jury verdicts on several state and federal law claims. Hilton challenges plaintiffs’ recovery on a variety of grounds, but because of the way we resolve the state law issues we need not discuss the difficult federal and constitutional issues raised by Hilton in its appeal.
I. Breach of Contract and Bad Faith Discharge
Hilton challenges the damages awarded for breach of contract and bad faith discharge on the ground that plaintiffs were employed at will. We review the district court’s determination of state law de novo. Salve Regina College v. Russell, — U.S. -, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). By allowing the jury to consider whether these employees were covered by an implied contract, the district court implicitly held that the jury could reasonably have found such a contract. This was error. The damages award cannot stand because plaintiffs were at-will employees as a matter of Nevada law; the jury should never have been presented with the issue. Cf. Smoot v. Boise Cascade Corp., 942 F.2d 1408 (9th Cir.1991) (finding error under Washington law of district court’s submitting similar claim to jury).
Plaintiffs were not employed under a written employment contract. Under Nevada law, the absence of a written contract gives rise to the presumption that employment is at will. See Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366, 368 (1989) (per curiam). Plaintiffs had the burden of rebutting this presumption by establishing that they were employed under a contract terminable only for just cause. Plaintiffs’ evidence fell into four broad categories: (1) plaintiffs’ longstanding satisfactory employment with Hilton; (2) inducements extended by Hilton to retain plaintiffs, including employee benefits and a retirement plan that were among the best in the industry; (3) a progressive disciplinary system, and a past practice of ter
The Nevada Supreme Court has rejected claims of contractual employment based on very similar evidence. In Vancheri, the plaintiff was not employed under a written contract, but was told by management when he came to work that “he would have a long and successful association with the GNLY family.” 777 P.2d at 367. GNLV had also established a progressive discipline system. The court rejected Vanch-eri’s argument that these circumstances could rebut the at-will presumption. As to the first factor, it said:
Vancheri was never told that his employment would be terminated only for cause or that he would have employment for life or a specified period of time. General expressions of long term employment or job advancement do not convert an at-will employment contract to a termination only for cause contract.
Id. at 369. As to the second factor, it said:
Standardized disciplinary procedures are generally positive additions to a business. They provide employers a method of cautioning employees, and afford employees an opportunity to improve job performance in order to retain employment. They also create a general consistency and security in the work place. If we were to hold that the establishment of standard disciplinary procedures for employees is, in and of itself, sufficient to convert an at-will employee to an employee who can be fired only for cause, employers would be reluctant to continue to establish them.
Id. at 369-70. The court concluded that these two circumstances were, as a matter of law, insufficient to rebut the presumption of at-will employment. Id. at 370.
In Bally’s Grand Employees’ Federal Credit Union v. Wallen, 105 Nev. 553, 779 P.2d 956 (1989), the court rejected similar claims by a worker who argued that she had understood she would have her job as long as she performed her duties. She testified that she had indicated to the employer at the time of the application that she was seeking permanent employment and that she had entered into all of the employer’s long-term employee benefit programs. Id., 779 P.2d at 957-58. The court held that this evidence “established nothing more than Wallen’s subjective expectations of continued employment, and ... is legally insufficient to rebut the presumption of at-will employment.” Id. at 958.
Like the plaintiffs in Vancheri and Bally’s, plaintiffs here only offered evidence of their unilateral expectations, based on common employment policies that are compatible with either at-will or dismissal-for-cause-only employment. Generous benefit packages, disciplinary procedures and general expressions of encouragement by management are all generic features of many employment relationships.
Thus, the only factor which the jury properly could consider in deciding the employment contract question is whether Hilton management agreed to terminate the plaintiffs only for failure to perform satisfactorily.
Plaintiffs place great reliance on the fact that pit boss Art Castle testified that he told every dealer he hired “They’d have to get so far out of line that there would be no cause for action other than to terminate them.” RT YI 140 (paraphrasing shift boss Bud Haines’s purported policy). Read in context, however, this testimony does not support the plaintiffs’ case. Castle testified that “[ejvery time a dealer was hired in the place, I gave them this spiel, more or less. I called it a ‘spiel’ — that they were part of the Hilton family and that the only way they could be terminated was to terminate themselves.” RT VI 139-40 (emphasis added). But every one of the plaintiffs was employed at the casino (then the International) before Hilton took over in 1972. See RT V 3. Thus Castle’s statement doesn’t help plaintiffs; there is no evidence that he gave them “this spiel.”
Indeed, there is evidence from the plaintiffs’ testimony that they were not told they would have a job as long as they performed satisfactorily. The following excerpts from the trial are typical:
[Q:] “Do you know what Mr. Haines’ policy was [regarding termination]?”
[A:] “You’d pretty much have to terminate yourself.”
[Q:] “Did Mr. Haines ever directly tell you anything along those lines?”
[A:] “He never directly told, but I was very confident.”
RT XII(A) 12 (Kustudia direct).
[A:] “It was the understanding that if you were to be terminated, you’d — if you were terminated, you’d terminate yourself- That was just a feeling.”
RT XII(A) 117 (Kustudia cross).
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[Q:] “Okay. At the time you were hired, you had no conversation with Mr. Haines about how long you would be employed. Is that true?”
[A:] “That’s true.”
[Q:] “And you had no discussions about the reasons for which you might be terminated. Is that true?”
[A:] “No, we had no discussions about — he gave me the list of rules. I assumed that if I followed all the rules and did my job properly, that I’d be okay.”
RT XX 2-3 (Stanford cross).
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[Q:] “In other words he didn’t say that you’re going to work for Hilton until you drop dead or anything like that?”
*762 [A:] “He didn’t say that. You had that impression — as long as you done your job, you always had a job.”
[Q:] “Now, that phrase gets used a lot in these depositions. Did he say that to you?”
[A:] “I don’t recall if he said it, it was like his policy.”
[Q:] “Written?”
[A:] “I never seen it written.”
[Q:] “Did you ever hear him say it?”
[A:] “Personally, no.”
RT XXIII 153-54 (Neill deposition).
A generalized understanding of job security based on satisfactory performance cannot create an implied contract of employment. The Nevada Supreme Court has considered testimony strikingly similar to that in this case: “I understood as far as a contract between [the employer] and I that I — as long as I performed my duties, I would have a job.” Bally’s, 779 P.2d at 957 (emphasis the court’s). The court found the employee’s understanding insufficient as a matter of law to support a jury finding of a for-cause employment contract.
In fact, it appears that the plaintiffs only expected to continue in Hilton’s employ, or assumed they would not be fired:
[Q:] “But you don’t recall at any time anyone in management at Hilton saying that your job was secure as long as you perform satisfactorily, do you?”
[A:] “That was an insinuation.”
[Q:] “But that was never said to you?”
[A:] “No, I never had any real discussion with management in that respect.”
RT XXIII 36 (Hineline cross).
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[A:] “You assume when you take a job, that if you do your job, you’re going to work there forever. That’s just an assumption I think everyone in the world has.”
RT XXIII 78 (Rexroad cross).
[Q:] “Did you have an understanding as to why you could be fired from your job?”
[A:] “Well, the general understanding was that if you didn’t do your job.”
RT XIII(A) 29 (Newman direct).
The Nevada Supreme Court has clearly stated, however, that “[cjontracts of employment cannot be created by the subjective expectations of an employee.” Vancheri, 777 P.2d at 369. In Vancheri, the employee testified to his “understanding” that he would not be fired at will, but the court held as a matter of law that no employment contract existed.
Some of the plaintiffs had a slightly different version of the “Haines policy”:
[A:] “... John Stewart ... assured me personally that I was doing a very good job, he was very happy with my work, and I had a job at the Hilton as long as I wanted one.”
[A:] “Bud Haines told me pretty much the same thing.... [H]e said that I would have a job at that hotel or with Hilton as long as I wanted one.”
RT XXVI(A) 6-7 (Drake direct).
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[A:] “I took the job, I assumed if I did my job in the way that they wanted me to, that I would keep the job as long as I wanted it.”
RT X 31 (Saunto direct).
The Nevada Supreme Court has held that an employee’s expectation of working as long as he wants is probative of an at-will relationship: Because the employee is free to leave any time before then, the employer can fire him at will. Bally’s, 779 P.2d at 958. There, the employee testified that she was told she’d be employed “I guess for as long as you care to work.” Id. (emphasis deleted). The court held as a matter of law that no for-cause contract was created: "This testimony described nothing more than agreement of employment for an indefinite term, and ... such an agreement is characteristic of an at-will relationship.” Id.) see also Vancheri, 777 P.2d at 370: “we hold that general expressions of job
Furthermore, it is doubtful whether statements such as the “Haines policy” can support an implied contract at all. The Washington courts have explicitly held otherwise. Lawson v. Boeing Co., 58 Wash. App. 261, 792 P.2d 545, 548 (1990) (“repeated oral promises that so long as job performance met a certain level [the employee] would retain his supervisory position” not sufficient to raise an issue of fact), review denied, 116 Wash.2d 1021, 811 P.2d 219 (1991). We have also so held, construing Washington law. Smoot, 942 F.2d at 1409, 1411 (statement to employee that “if you do a job — your performance is right, as long as there is a job there, I don’t see any reason why it wouldn’t be you” insufficient evidence of employment contract to go to jury). The Nevada Supreme Court frequently looks to Washington law in employment cases. See, for example, Vancheri, 777 P.2d at 369 (citing and relying upon Irwin Concrete, Inc. v. Sun Coast Properties, Inc., 33 Wash.App. 190, 653 P.2d 1331 (1982), and Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764 (1977)).
A fair number of the plaintiffs were told nothing at all. The following exchanges are representative:
[Q:] “At the time Hilton bought [the International], did Mr. Newman say anything to you about how long you could expect to work for Hilton?”
[A:] “No, sir.”
[Q:] “Or why you could be fired by Hilton?”
[A:] “No, sir.”
[Q:] “Did Mr. Haines say anything like that to you?”
[A:] “No.”
[Q:] “Either about how long you could expect to work or why you could be fired?”
[A:] “No, sir.”
[Q:] “Nobody said anything like that to you?”
[A:] “No, sir.”
RT XXXV 26 (Shailer deposition).
[Q:] “And when Hilton acquired the International, they also, neither Mr. Newman or Mr. Haines — neither of them said anything to you on [how long your job was going to last or the reasons you could be terminated]?”
[A:] “No.”
[Q:] “And at anytime after that at the Hilton, and anytime during your employment at the Hilton, none of your supervisors said anything to you about how long your employment was going to last, did they?”
[A:] “No.”
[Q:] “Or what the reasons you could be fired were?”
[A:] “No.”
[Q:] “And you also never read any documents that discussed either of those subjects, right?”
[A:] “That’s right.”
[Q:] “And otherwise, other than what anybody might have told you or what was in any document, other than that, you didn’t have any independent understanding as to how long your employment was going to last?”
[A:] “No, I was never told anything.”
RT XXXIV 17 (Zarro cross).
The Nevada Supreme Court has held on similar facts that the employees were employed at will. Smith, 752 P.2d at 234. There, as here, there was no written contract and no specific termination date. “Smith was nothing more than an at-will employee. As such, she was subject to employment termination at any time, so long as the purpose for termination did not offend the public policy of the state of Nevada.” Id. at 235.
Finally, some of the plaintiffs expressly recognized the at-will nature of the employment relationship:
[Q:] “Prior to the time of your termination from the Hilton, did you believe that Mr. Kelly could fire you for no reason?”
[A:] “Yes. That’s why I was concerned.”
*764 RT XVIII(A) 50-51 (Dudley deposition).
[Q:] “So you understood ... that Mr. Kelly had the right to fire you for whatever reason?”
[A:] “Oh, I would guess so, yes. Yeah. Whether he had the right or not, I certainly believe he could terminate people.”
RT XVIII(A) 51 (Dudley cross).
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[Q:] “Are you saying that you continued to rely upon the fact that as long as you did your job you had a job?”
[A:] “I relied on my own ability to do my job to maintain my job.”
RT XI(A) 9 (Saunto direct).
[A:] “My job at that time was in the hands of the Hilton Corporation.” RT X 108 (Saunto direct).
Where the employees themselves acknowledge that they hold their jobs only by the employer’s good graces, it cannot seriously be argued that an implied for-cause contract exists.
Almost a century ago, Oliver Wendell Holmes wrote a passage that bears frequent repetition: “[T]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs, — not on the parties having meant the same thing but on their having said the same thing.” The Path of the Law, 10 Harv L Rev 457, 464 (1897). This salutary principle has been adopted by the Supreme Court of Nevada as the governing law of employment disputes. Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 632 P.2d 1155, 1157 (1981) (quoting Holmes). It thus controls this case.
The jury was charged to consider the contract issue as to the plaintiffs collectively. The evidence was overwhelming that defendant was silent on the grounds for termination. Bud Haines’s fire yourself policy was a general understanding rather than a term of the agreement at the time of employment. It may even have expressed indefinite employment, which is indicative of an at-will relationship. In any event, the plaintiffs’ subjective expectations cannot transform employment at will into a for-cause relationship. And many of them were told nothing about the terms of employment, leaving Nevada’s at-will presumption firmly in place. Some even recognized explicitly the at-will nature of their employment. As a matter of Nevada law, the plaintiffs were employed at will and therefore could be dismissed at will.
It’s true that a few of the plaintiffs testified that Haines or another manager told them that they would have their job as long as their performance was satisfactory. As noted, we have recently held a nearly identical statement insufficient as a matter of Washington law to create a jury question on the existence of an implied contract. Smoot, 942 F.2d at 1409, 1411. Even if such statements were sufficient to establish an implied contract, they could not sustain the verdict in this case. The court’s instructions, as well as the verdict form, called for a determination of liability as to the plaintiffs as a group. Stray statements directed to a small number of individual employees cannot sustain a finding that there was an implied contract as to the
The Nevada Supreme Court’s most recent employment decision, D’Angelo, does nothing to alter this analysis. In that case, the court recognized that there can be implied employment contracts, and held on the facts before it that the plaintiff had presented sufficient evidence to go to the jury on the issue. 819 P.2d at 209-11. “The issue here,” the court stated, “is simply whether the employee should be denied his day in court and not allowed to present evidence.” Id. at 209 n. 3. In this case the employees were given ample opportunity to present evidence of such a contract. As demonstrated above, however, the evidence presented was insufficient as a matter of Nevada law to create an implied contract and thus never should have been submitted to the jury. The D’Angelo court expressly disclaimed the notion that “any determination by [an employer] to terminate an employee is contestable before a jury.” Id. (emphasis added; internal quotations omitted). It also endorsed Vancheri, which is factually similar to this case and where the court dismissed the plaintiffs claims after he had put in all his evidence. See D’Angelo, 819 P.2d at 211: “Mr. Vancheri failed, as a matter of law, to establish an agreement, express or implied, between his employer and him, that granted to him the right of continued employment.” So too here. It was error to allow the jury to consider the implied contract issue, and plaintiffs cannot recover damages for breach of contract.
Nor can they recover in tort. It may be true that Hilton’s stated reasons for firing the employees do not square completely with the facts. But Hilton was not required to give any reason at all for its action. “[A] bad faith discharge tort cannot be committed against an at-will employee....” D’Angelo, 819 P.2d at 212.
Because plaintiffs were employed at will, Hilton was entitled to discharge them at will. They cannot maintain a cause of action under Nevada law for breach of contract or bad faith discharge. Sands Regent, 777 P.2d at 899 (“[B]oth breach of contract and bad faith discharge presuppose that the parties had an employment agreement.”). The district court erred in allowing the jury to consider the existence of an implied contract, when no such contract could have existed as a matter of Nevada law. Cf. Smoot, 942 F.2d at 1411-12 (district court faced with similar facts erred in not granting a directed verdict or JNOV under Washington law). The damages awarded under these theories must be vacated.
II. Intentional Infliction of Emotional Distress
Because plaintiffs were at-will employees, Hilton was entitled to terminate them without cause. Hence, their dis
Even had plaintiffs managed to establish that the terminations were wrongful, Nevada does not recognize a cause of action for intentional infliction of emotional distress in the employment termination context. Plaintiffs point to MGM Grand Hotel-Reno, Inc. v. Insley, 102 Nev. 513, 728 P.2d 821 (1986), and Alford, 669 P.2d 721, but neither case supports this position. Alford, as already discussed, was resolved on other grounds. In MGM Grand, the Nevada Supreme Court held only that plaintiffs claim for intentional infliction of emotional distress against his employer for conduct related to his industrial accident claim was not preempted by federal labor law. 728 P.2d at 825. The court declined to address the issue in its most recent employment decision. D’Angelo, 819 P.2d at 211, 219 n. 13. Since the Nevada Supreme Court has given no indication that the emotional distress cause of action applies in the employment termination context, and the issue is open elsewhere,
III.Punitive Damages
Hilton argues that plaintiffs are not entitled to punitive damages as a matter of Nevada law. It also raises constitutional challenges to the punitive damages award. We hold that the award was improper under Nevada law and therefore do not reach the constitutional issues.
Under Nevada law, a punitive damages award must be based on a cause of action sounding in tort. Sprouse v. Wentz, 105 Nev. 597, 781 P.2d 1136, 1138 (1989) (per curiam). Since plaintiffs cannot recover for bad faith discharge or for intentional infliction of emotional distress, they are left without a state law tort to support their punitive damages award.
IV.Group Determination of Liability and Damages
Hilton argues that allowing the jury to determine liability and damages on a group basis for the contract and tort causes of action violated its seventh amendment right to a jury trial, as well as the Erie doctrine and the due process clause. Because of the way we have resolved the state law issues, see esp. pages 764-765, supra, we need not reach this difficult question.
V.ERISA Preemption
Hilton argues that plaintiffs’ state law claims are preempted by the Employment Retirement Income Security Act (ERISA), 29 USC § 1001 et seq, the federal statute that governs employee benefit plans. We need not reach this issue because we have struck down the state law damage awards on other grounds.
VI.ADEA Issues
The EEOC raises two issues regarding the damages awarded under the ADEA. First, it argues that plaintiffs should have been awarded liquidated damages in addition to back pay. Second, it argues that the district judge erred in refusing to allow the jury to award front pay. Because we have struck down the punitive damages award, these issues are easily resolved on the basis of concessions made by Hilton and the EEOC.
The jury found that Hilton’s ADEA violation was willful, CR 441, Question 1A, yet did not award liquidated damages under 29 USC § 626(b). Plaintiffs and the EEOC argue that liquidated damages are mandatory once a willful violation is found. We need not resolve this issue because Hilton has made the following concession:
Because it is impossible to tell whether the punitive damages award contains a hidden award of federal liquidated damages, Hilton concedes that it would be appropriate, if the punitive damage award is reversed or remitted below $1,427,048.00 [the amount of back pay awarded to the ADEA plaintiffs], for this Court to reinstate that award up to that amount in order to ensure that the jury’s finding of willfulness, which Hilton does not contest here, is implemented according to the ADEA’s statutory purposes.
Hilton’s Brief in Reply to the Responsive Brief of Plaintiffs and in Response to the Briefs on Cross-Appeal of Plaintiffs and the EEOC, at 87 n. 52. Accordingly, liquidated damages should be awarded in this case; the ADEA plaintiffs’ back pay award should be doubled.
B. Front Pay
Plaintiffs and the EEOC argue that the court erred in instructing the jury that it could not award front pay. The EEOC conceded in its brief, however, that “if the present verdict stands or if liquidated damages are awarded, the district court’s failure to allow an award of future damages may not be an abuse of discretion under the law of this Circuit.” Brief of the EEOC as Cross-Appellant, at 13 n. 19. We have ruled that plaintiffs must be awarded liquidated damages. Because plaintiffs will be getting double back pay, we conclude that the district court did not abuse its discretion in declining to award front pay. See Cancellier v. Federated Dep’t. Stores, 672 F.2d 1312, 1320 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982).
VII. Plaintiff Foltz
Plaintiff Foltz challenges the sanctions imposed by the district court for his refusal to provide information regarding his income, taxes and employment during the discovery process. He argues that the sanctions were improper because he based his refusal on the fifth amendment privilege against self-incrimination. In the alternative, he argues that the sanctions were excessive.
We undertake a two-part inquiry in reviewing a discovery sanction when the party has asserted a fifth amendment privilege: “(1) did the party resisting discovery properly assert his Fifth Amendment privilege, and (2) if not, did the district judge abuse his discretion in imposing the sanction involved.” Davis v. Fendler, 650 F.2d 1154, 1159 (9th Cir.1981) (footnote omitted), citing Baker v. Limber, 647 F.2d 912 (9th Cir.1981).
Applying the first part of this test, we find that Foltz did not have a fifth amendment privilege concerning the requested information and records. Foltz’ concern is that disclosure of this information might have subjected him to prosecution for tax crimes. But the fifth amendment’s self-incrimination clause does not give taxpayers a right to withhold financial information from the IRS unless they can show an appreciable possibility of prosecution for a non-tax crime. Fuller v. United States, 786 F.2d 1437, 1439 (9th Cir.1986). We have applied this principle in the civil discovery context, upholding dismissals of taxpayers’ actions for redetermination of deficiencies when taxpayers refused to comply with the IRS’s discovery requests on fifth amendment grounds. McCoy v. CIR, 696 F.2d 1234, 1236 (9th Cir.1983); Edwards v. CIR, 680 F.2d 1268, 1270 (9th Cir.1982).
Since Foltz could not assert the fifth amendment vis-a-vis the IRS directly in the civil discovery context when he faced the possibility of incriminating himself with regard to tax crimes, it is difficult to see how he could have a fifth amendment privilege vis-a-vis third parties. Foltz cites no authority for such a privilege and it is
Although sanctions were appropriate because Foltz did not have valid reasons for resisting discovery, we conclude that the sanctions imposed in this case were excessive. The district judge shut Foltz out of any recovery.
VIII. Plaintiff Delling
Plaintiff Delling contests the district court’s factual finding regarding the date he became disabled.
We conclude that this factual determination had adequate support in the record. The district court adopted the disability date used by Hilton’s expert economist in a report on plaintiffs’ damages. Exhibit BL, at 2. The expert based this date on a statement of Delling’s earnings record produced by the Social Security Administration. Id at 14, n. 5. Delling argues that his trial testimony establishes the later date. His trial testimony, however, mentions several possible disability dates. For purposes of obtaining unemployment benefits, he claimed that he was disabled as early as September 1984. RT XXXII(A) 53-54. He later applied for social security disability benefits and claimed that the onset of his disability was in 1985. Id at 56-58. He also testified that he considered himself to be totally disabled and not able to work after a hospitalization in the middle of 1986. Id at 45-46. He concedes that he did not in fact work after August 1985, when he was fired from a taxi driver job because he could not lift luggage. Brief of appellees/cross-appellants, at 83 n. 98.
Considering all the evidence, the district court’s finding that Delling became disabled on October 15, 1985, was not clearly erroneous.
Conclusion
Plaintiffs were victims of age and sex discrimination and will recover damages under Title VII and the ADEA. The plaintiffs who recovered under the ADEA are also entitled to liquidated damages. Plaintiffs are not entitled to additional contract or tort damages under Nevada law. The
The judgment is REVERSED and the case is REMANDED for entry of judgment consistent herewith.
.To the extent that plaintiffs are asking us to look to the employee handbook to support their claims, we note that no provision in the handbook modified the employer’s right to fire employees at will. See Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898, 899 (1989); Smith v. Cladianos, 104 Nev. 67, 752 P.2d 233, 235 (1988). Plaintiffs offered no objective evidence to support a jury finding that the handbook became part of any employment contract. See D'Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206, 209-11 (1991).
. Plaintiffs cite no case in support of their argument that longevity of service can rebut the at-will presumption in Nevada. Indeed, other states have held that longevity of service cannot convert an at-will contract into one providing for termination only for cause. See Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764, 769 (1977) (en banc).
. The dissent argues that the preceding evidence, although insufficient as a matter of Nevada law to establish an implied contract of
. In these and the following excerpts from the trial testimony, emphasis has been supplied.
. The dissent relies partially on statements made by management long after these employees were hired at Hilton. See dissent at 773-775. All of these statements — from meetings following the fire, the St. Patrick’s Day massacre and the 1983 management firings — are consistent with the at-will nature of the plaintiffs' employment. If encouraging employees to stay on board after a shakeup or tragedy gives rise to for-cause contracts with all those employees who stay, employers will have to stop giving routine pep talks. Furthermore, while the terms of employment may be changed during the time of employment — for example, a previously at-will employee might be given an employment contract — the plaintiffs’ theory in this case was that they were covered by an implied contract from the date they were hired. In closing argument, for example, plaintiffs’ counsel focused on “what the evidence was as to just what the understanding was, what the meeting of the minds was, between these men and Hilton back in 1970 and '71 when it bought the International.” RT XLVII 31 (emphasis added). Because no reasonable jury could have found an agreement at that time, the later expressions by management are irrelevant to the issues before us.
. Nevada law recognizes two torts related to employment termination: Bad faith discharge, which is based on firing the employee in violation of the implied covenant of good faith and fair dealing in the employment contract, and tortious discharge, which is based on firing the employee in violation of public policy. D’Angelo, 819 P.2d at 211-12. In the absence of an employment contract, a plaintiff can recover only under the latter theory. Id. at 216. "The prototypical tortious discharge case is [Hansen v. Hurrah’s, 100 Nev. 60, 675 P.2d 394 (1984) ], in which an employee claimed to have been discharged to penalize him because he had filed a workers compensation claim.” Id. No such conduct is alleged in this case. In fact, the Nevada Supreme Court has "refused to recognize an action for tortious discharge even though the defendant had clearly violated Nevada's public policy against age discrimination.” Id. 819 P.2d at 216-17 (citing Sands Regent, 777 P.2d at 900). In any event, "[n]o public policy tort was pursued by Plaintiffs.” Supplemental Brief of Appellees/Cross Appellants at 9. Plaintiffs cannot recover for tortious discharge.
. Because plaintiffs were not entitled to any damages for breach of contract or bad faith discharge, we need not address their argument that they should have been awarded emotional distress damages for bad faith discharge.
. The California Supreme Court will soon consider the issue for the first time. Lanouette v. Ciba-Geigy Corp., 230 Cal.App.3d 889, 272 Cal.Rptr. 428, review granted, 29 Cal.3d 615, 275 Cal.Rptr. 420, 800 P.2d 898 (1990).
. We need not address Hilton’s argument that the award of prejudgment interest on the emotional distress damages was improper under Nevada law. As we have struck down the damages award, the prejudgment interest falls with it.
. This sanction was equivalent to dismissing Foltz's lawsuit, a sanction we have held must be applied sparingly. See Campbell v. Gerrans, 592 F.2d 1054, 1058 (9th Cir.1979) ("The sanction of judgment by default for failure to comply with discovery orders is the most severe sanction which the court may apply, and its use must be tempered by careful exercise of judicial discretion to assure that its imposition is merited,” quoting Trans World Airlines v. Hughes, 332 F.2d 602, 614 (2d Cir.1964), cert. dism’d, 380 U.S. 248, 85 S.Ct. 934, 13 L.Ed.2d 817 and 380 U.S. 249, 85 S.Ct. 934, 13 L.Ed.2d 818 (1965).).
. The court, rather than the jury, made this factual finding because the court awarded compensation for lost retirement benefits as an equitable remedy in the Title VII action, after the jury verdicts came in. CR 493, at 2-3. The court decided that the “equitable method for awarding Plaintiffs lost retirement benefits [was] to utilize the existing provisions of the Hilton Hotels' Retirement Plan." Id. at 3.