911 F. Supp. 2d 1043
D. Nev.2012Background
- Minshew, a former Air Force civilian contract specialist at 99 CONS, was removed for unacceptable performance in 2008 after prior EEO activity involving Saltón.
- In 2009, Alpha-Omega was awarded CAAS III Task Order 68 (base year + option) to provide contract staff, including at 99 CONS; Minshew’s resume was submitted and approved by Air Combat Command.
- Duncan of Alpha-Omega offered Minshew a contingent employment letter for Task Order 68, with start date and terms, contingent on government acceptance; Minshew accepted the offer.
- Saltón opposed Minshew’s return to 99 CONS, emailing Bergo that her return would be disruptive; Bergo and Saltón influence led to reconsideration of her placement.
- Air Force later reversed prior resume approval, withdrawing the offer; Alpha-Omega did not employ Minshew and Fox at 99 CONS after rescission, though Fox later worked there under Task Order 68.
- Minshew filed suit (2010) asserting retaliation, Privacy Act claims, Bivens against Saltón and Bergo, and various Alpha-Omega claims; the court granted some motions and denied others, with several counts resolved in favor of the defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there an enforceable contract with Alpha-Omega? | Minshew: CAAS III/Task Order 68 and handbook create a two-year contract. | Alpha-Omega: at-will employment; no definite term; no incorporation of Task Order 68 terms; statute of frauds not satisfied. | Alpha-Omega granted summary judgment; no enforceable term established. |
| Did Task Order 68/affirmative-action provisions create third-party rights for Minshew? | Intended beneficiary under affirmative-action provisions. | No clear intent to benefit employee as third party; government contract limitations apply. | No third-party rights; claims fail. |
| Did Nevada statutes create a private right of action or public-policy basis for counts against Alpha-Omega (Counts Seven and Eight)? | Statutes reflect public policy supporting a tortious-discharge/public-policy claim. | No private right of action; public-policy claim insufficient; NIED not established. | Count Seven granted against Alpha-Omega; Count Eight granted (partially) or resolved? (summary: granted). |
| Does Minshew’s Bivens claim against Saltón and Bergo survive given at-will Nevada employment? | Constitutional due-process-rights to employment and stigma violations. | No protected property right; stigma not sufficient; qualified immunity; right not clearly established. | Count Two: property interest and liberty interest rejected; partial denial/partial dismissal as appropriate. |
| Did Air Force retaliation (Count One) survive summary judgment against Alpha-Omega and the Air Force? | Prima facie retaliation established; but need showing of causation/pretext. | Legitimate non-retaliatory reasons for actions; no pretext established. | Court denied Minshew’s summary-judgment motion; Air Force’s motion is denied/adjudicated in part consistent with factual disputes. |
Key Cases Cited
- Martin v. Sears, Roebuck & Co., 899 P.2d 551 (Nev. 1995) (employment at-will presumption; only for cause if contractual/standing policies)
- D’Angelo v. Gardner, 819 P.2d 206 (Nev. 1991) (contract of continued employment; handbook effects;)
- Bally’s Grand Emps. ’ Fed. Credit Union v. Wallen, 779 P.2d 958 (Nev. 1989) (at-will employment; long-term statements do not create contract)
- Sheehan & Sheehan v. Nelson Malley & Co., 117 P.3d 219 (Nev. 2005) (contract interpretation and incorporation of documents)
- Merritt v. Mackey, 827 F.2d 1368 (9th Cir. 1987) (property interest in private employment under Fifth Amendment)
- Wilbom v. Dep’t of Health & Human Servs., 49 F.3d 597 (9th Cir. 1995) (disclosure from records vs. non-record knowledge)
- Bartel v. FAA, 725 F.2d 140 (D.C. Cir. 1984) (investigation disclosures; memory-based disclosures)
- Campanelli v. Bockrath, 567 F.3d 529 (9th Cir. 2009) (stigmatizing statements and due process)