Martin v. Papillon Airways, Inc.

810 F.Supp.2d 1160

Myron R. MARTIN, Plaintiff,

v.PAPILLON AIRWAYS, INC. d.b.a. Papillon Grand Canyon Helicopters, Defendant.

Case No. 2:09–cv–002127–GMN–GWF.

United States District Court, D. Nevada.

Aug. 24, 2011.As Amended Feb. 2, 2012.

Michael P. Balaban, Law Offices of Michael P. Balaban, Las Vegas, NE, for Plaintiff.

Patrick H. Hicks, Roger L. Grandgenett, Wesley C. Shelton, Littler Mendelson, PC, Las Vegas, NV, for Defendant.

ORDER

GLORIA M. NAVARRO, District Judge.

INTRODUCTION

Before the Court is Defendant Papillon Airways, Inc. dba Papillon Grand Canyon Helicopters' (hereinafter “Defendant” or “Papillon”) Motion for Summary Judgment (ECF No. 23). Plaintiff Myron R. Martin filed a Response on December 21, 2010 (ECF No. 26) and Defendant filed a Reply on January 14, 2011 (ECF No. 28).

FACTS AND BACKGROUND

This dispute arises out of an alleged wrongful termination of Plaintiff Martin. On or about November 10, 2006, Martin was hired by defendant Papillon to act as their Procurement Manager. (Martin Decl. ¶ 3, ECF No. 26–4.) This incident that Martin alleges gave rise to his termination began in July of 2009. On July 2, 2009 Martin received an e-mail from Dean Brandt (Vice President of Operations, Chief Information Officer and General Manager for Papillon) asking him and Alan Martin (Maintenance Manager for Papillon) to order some windshields from Tech–Tool Plastics, Inc. (“Tech–Tool”) for Eurocopter France (“Eurocopter”). ( Id. at ¶ 10; Ex. C, ECF No. 26–5.) Tech–Tool and Eurocopter are two of Papillon's vendors. After reviewing the e-mails, Plaintiff discovered that the windshields were being ordered without Tech–Tool's knowledge or consent that they would be sent to Eurocopter France. (Martin Aff. at ¶ 12; Ex. D, ECF No. 26–5.) Martin believed that Eurocopter France was acquiring the windshields to study the design because Eurocopter was having issues with cracking. ( Id.) Martin determined that this was dishonest, deceitful, unethical and probably unlawful and decided to reveal this to Tech–Tool. (Martin Aff. at ¶¶ 13–14.) Thus, when Martin placed the order he also sent to Grady Aldarondo at Tech–Tool the entire string of e-mails to fully disclose what was going on. ( Id. at ¶ 14). Martin received a phone call from Aldarondo shortly thereafter who explained that the owner of Tech–Tool was very mad and that the windshields would not be shipped. ( Id. at ¶ 16.)

On July 6, Plaintiff e-mai led Brandt and Alan Martin telling them what he had done. ( Id. ¶ 18; Ex. E; ECF No. 26–6.) Sometime thereafter Martin was verbally assaulted by Brandt and was told he was being suspended without pay for one week while they decided what to do with him. (Martin Aff. at ¶ 22; Ex. F, ECF No. 26–6.) On July 13, 2009 Martin was terminated. (Martin Aff. at ¶ 23, Ex. G, ECF No. 26–6.)

Defendant claims that Martin was terminated because he yelled and hung up on another customer, Tom Belew on July 1, 2009 and that Martin's conduct on that day was consistent with his past unprofessional conduct. Defendant contends that this pattern of bad temperament was the reason for Martin's termination and had nothing to do with Martin disclosing to TechTool that they were ordering windshields for Eurocopter.

Plaintiff filed suit in District Court of Nevada, Clark County on May 28, 2009 and Defendant removed the case to the Federal District Court of Nevada. (Notice of Removal ¶ 1, ECF No. 1.) Plaintiff alleged four causes of action: (1) tortuous discharge in violation of public policy, (2) breach of implied-in-fact contract, (3) breach of the covenant of good faith and fair dealing, and (4) intentional infliction of emotional distress. (Complaint, ECF No. 1.) The parties stipulated to dismiss the second and third causes of action. (ECF No. 21.) Defendant filed the instant motion for summary judgment seeking judgment in its favor for counts one and four.

DISCUSSION

A. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).¹ Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor.” Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir.1999)). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50, 106 S.Ct. 2505.

B. Tortuous Discharge

Under Nevada law, to prevail on a tortuous discharge claim “the employee must be able to establish that the dismissal was based upon the employee's refusing to engage in conduct that was violative of public policy or upon the employee's engaging in conduct which public policy favors.” Bigelow v. Bullard, 111 Nev. 1178, 901 P.2d 630, 632 (1995). It is against public policy to terminate an employee that refuses to engage in conduct that he, in good faith, reasonably believed to be illegal. See Allum v. Valley Bank of Nevada, 114 Nev. 1313, 970 P.2d 1062 (1998). The whole premise of this section relies on the assumption that Plaintiff in good faith thought that by not revealing certain information about the order to Tech–Tool, he and his company would be engaging in some illegal activity. Defendant vehemently argues that there was no violation of public policy because it is not illegal to buy items on the open market for someone else. However, Tech–Tool's reaction supports Plaintiff's position.

To establish a tortuous discharge for refusing to partake in conduct violative of public policy in Nevada, it is clear that an employee must refuse to follow his or her employer's instruction to perform an unlawful act. For example, in Western States v. Jones, 107 Nev. 704, 819 P.2d 206 (1991) an employee refused to follow his employer's request to work in an unsafe work environment and he was terminated as a result. The Court held that the employer's conduct violated Nevada public policy and found that a tortuous discharge claim will be permitted if the discharge is based on the employee's refusal to comply with an employer's demand that the employee engage in improper activity. Id. at 718, 819 P.2d 206. However, in Bigelow v. Bullard, 111 Nev. 1178, 901 P.2d 630 (Nev.1995), where two plaintiffs brought a wrongful termination claim after they were terminated for objecting to the employer's discriminatory practices the Bigelow court explained that only when an employee refused to engage in...