*1 372 fees the Horseshoe Club charge supervisory
might rеpeated Nothing near the electrical room. whenever an works employee assertion. This court “has no support exists in the record to Ready of a case.” Carson Mix to look outside of record power 276, Bank, v. First Nat’l Gilmore, (1878)). Alderson (quoting reasons, I reverse the order of the For all of the above would court and remand this matter for trial. district STORES, INC., DILLARD DEPARTMENT a Delaware INC., NEVADA, DILLARD’S Corporation; a Nevada BECKWITH, v. DELORIS Corporation, Appellants, Respondent. No. 31378 P.2d 882
December [Rehearing February denied 2000] Lee, Ltd., Ales and Paul C. Barney Ray, John Peter C. Las Vegas, Appellants. Williams, Colby and J. Las Campbell
Donald J. & Associates Vegas, for Respondent.
OPINION Court, Leavitt, J. : By the Beckwith, a sixty-four years age, twenty-five- was
Deloris of (Dillard) Dillard Stores and an area year employee Department of years. her at work manager injured sales for nineteen She back a Dillard is a and filed workers’ claim. self-insured compensation work, but Beckwith was asked to return to her doctor employer. condition. When Beckwith refused to release her because her work, to return Dillard filled her with man- job failed to another return, to an entry-level her was demoted ager. Upon Beckwith salary in with a reduction and bene- position forty-percent sales resigned fits. She and commenced this action.
FACTS Beckwith of Dillard who had never exemplary employee was an and rating “satisfactory” received an annual review of less than “very “outstanding.” her her or Her good” most of reviews rated $41,000 and a salary year, enjoyed package was she benefit per coverage plan. included and a retirement medical move attempting her at while to Beckwith strained back work unable walk table. Her rendered her to large mahogany injuriеs a A Dillard without assistance. doctor recommended upright or to acute lum- secondary her as disabled temporarily certified agreed. Dillard Another doctor referred bosacral strain. prior return work to her manager store that Beckwith to requested doctor, though knew she had manager release from even to when not been released. Beckwith failed return work was her The store requested, person given position. and another that she had been manager by telephone later informed her replaced. duty returned to work light approximately
Beckwith Dillard entry-level an injury. assigned position, a month after the She was Thereafter, filing. which included document she asked weekly managers’ leave she no department meeting a because All of the other area longer management position. served in Beckwith’s managers managers sales and assistant observed aas result of the incident. humiliation choices, resignation or given Beckwith was two ultimately entry-level a forty-percent sales associate with permanent position in the demotion she wages cut and benefits. She because accepted and needed the medical benefits. Beckwith was her sole support division, of the ready-to-wear to the one assigned ladies’ daily make sales If quotas. most difficult in which to departments daily quotas, they not entry-level sales associates did make their be fired. After Beckwith pay could be docked part sales, laugh working teenage sales associates would began back, Dillard additionally, employees at her her other behind she was why in the talked about Beckwith’s situation and store into the employee At one when Beckwith wаlked point demoted. lunchtime, at went silent and stared lounge people room humil- management twice about the complained her. Beckwith her She effect on health. experiencing iation she its with finally resigned twenty-fifth year one week before her Dillard. *4 were
At released to return to work there the time Beckwith was for she was manager positions quali- two area sales which open fied, eligible was for an area management determined she not but her demotion. She manager position, prior sales she held post for she took time “off was the demotion was because notified comp.” workman’s [sic] a psychia- fell into a treated depression Beckwith antide- disorder. She treated with major depressive trist for a medication and pressant psychotherapy. leaving job, applications her Beckwith filled out Aftеr stores, friends who at called
employment department several worked at different stores to if inquire any positions were open and consulted a friend who owned an employment agency in to find attempts work. She called Sears and Penney’s J.C. to see if they had openings and filled out applications. She also filed an application with Neiman-Marcus. Nothing came of these efforts. At trial evidencе presented most department stores have a policy promote reason, from within and for that Beckwith would not have a chance to be hired a manager any compa- rable department store. $424,028
The jury awarded in compensatory damages on the $200,000 tortious constructive discharge claim and on the inten- tional infliction of emotional distress cause of action. The'jury also awarded punitive damages and after reduction of each claim to three times the compensatory damages the punitive damages $1,872,084. totaled damages $2,496,112. total awarded were The court also awarded attorney’s $518,455 fees in the amount of pursuant to NRS 17.115 and NRCP 68.
DISCUSSION Tortious Constructive Discharge
Employees in Nevada are presumed to be employed “at-will” unless employee can prove facts legally sufficient to show a contrary agreеment was in effect. Vancheri v. GNLV Corp., (1989). P.2d 366 The at-will rule gives the employer the right to discharge reason, an employee for any so long as the reason does not violate public policy. Vancheri at 369; 777 P.2d at Ponsock, K Mart 39, 47, v. Corp. (1987).
Previously, we have specifically held that “the at-will employ- ment rule is subject to limited exceptions upon founded strong public policy; and the failure of the legislature to enact a statute expressly forbidding retaliatory discharge for filing workmen’s compensation claims does not preclude this Court from providing a remedy for what we conclude to be tortious behavior.” Hansen Harrah’s,
Dillard claims private cause of action for tortious discharge for filing a workers’ compensation claim no longer exists in Nevada after legislature, passed NRS 616D.030: 1. No cause of action may be brought or maintained against an insurer or a third-party administrator who violates any provision 616A, 616B, chapter or chapter 616C or 617 of NRS. *5 for in NRS fines provided
2. The administrative any remedies are the exclusive for and 616D.120 616B.318 616B, 616A, 616C this chapter chapter violation of or a by third-party committed an insurer or 617 of NRS administrator. recognized:
We have
stemming from the
by an
“[Retaliatory discharge
employer
injured
claim
an
a
filing
compensation
of workmen’s
the cause of action
actionable in tort. Since both
is
employee
torts,
the law of
there is no
remedy
governed by
the
and
of the
within the framework
basis for administrative relief
...”
insurance system
state industrial
Hansen,
64-65,
at
act. The statutes set forth fines be all. It provides or at also properly, such as not claimants paying if it lose its certification violates employer may that a self-insured 616D.030, of part statutes. NRS compensation the workers’ scheme, law dis- does not affect the case of tortious statutory charge against policy. public upon is shown to exist discharge tortious constructive [A] (1) resignation was induced that: the
proof
employee’s
(2)
of public policy;
that are violative
action and conditions
at the time of
employee’s position
in the
person
reasonable
resigned
aggra-
have
because of
resignation would
also
conditions; (3)
and
intolerable
actions
employment
vated and
knowledge had actual or constructive
employer
and their
on
impact
actions and conditions
intolerable
have been remedied.
the situation could
employee;
Co.,
Sears,
Roebuck and
Martin
Industries,
App.
196 Cal.
(1995) (citing Brady
v. Elixir
Here,
(Ct.
1987)).
properly
jury
App.
3d
on the above elements.
instructed
laws
workmen’s compensation
We have held that “Nevada’s
security
economic
favoring
public policy
reflect a clear
their employment.”
while in the course of
injured
employees
Hansen,
cerning the provisions injured an returning certain priorities insurer shall follow “[rjeturn work, injured being to the first priority employee ’ Dillard injury.’ complains he had before his job to the employee that the liability instruction created a strict standard and in effect against directed a verdict it. *6 instruction,
We The disagree. by only which its terms applies to operatives of a workers’ public private compensation plan, was offered to demonstrate Nevada’s with to policy regard injured The workers. instruction was not offered as an assertion of strict liability or that a violation of NRS 616C.530 is a claim for which a worker receive may monetary damages. Beckwith’s claim was that Dillard violated her return public policy by requesting to to prior being medically work to released. Dillard then punished Beckwith for her refusal against to return to work doctor’s orders by demoting her. of this state Clearly, public policy favors security “economic while in the employees injured course of ’ We conclude that the failure employment.’ pri- to follow statute, together orities set forth in the with improper Dillard’s orders, that Beckwith return request against to work doctor’s a direct that public violation of One of the elements nec- policy. essary to constructive prove discharge tortious is that action by the employer was violation of The instruction public policy. The proper purpose. judgment for this as to the tortious con- structive discharge is affirmed.
Intentional Distress Emotional Infliction of
The elements of a cause action for intentional infliction of “(1) emotional are outrageous distress extreme and conduct with of, for, either the intention disregard causing or reckless emo distress, (2) tional severe or extreme plaintiff’s having suffered ’ (3) emotional distress actual or causation.’ Star v. proximate Rabello, 124, 125, (1981) (citation 97 Nev. 625 P.2d omit ted). We have held the also “tort of intentional infliction of emo recognizable tional distress is in the employment termination Amerco, Inc., 735, 747, context.” Shoen 896 P.2d case, In the there was evi present substantial dence presented support intentional infliction of emotional jury’s distress claim. verdict evi supported substantial “[A] dence will clearly not be overturnеd unless the verdict is erro neous when viewed in of all the evidence light presented.” Frances v. Plaza Pacific 847 P.2d Equities, 109 Nev. Wallen, (citing Bally’s Credit Union v. Employees’ 553, 555-56, (1989)) (emphasis deleted). Beckwith,
Dillard did not offer her longtime employee, pre- vious an position manager as area sales when she returned to the fact that injury. after her This refusal occurred despite
work were for which manager open other area sales positions two entry-level She forced to take an qualified. Beckwith was was also her salary reduction in and was told forty-percent with position compen- related to her claim for workers’ directly demotion was fellow as to Ultimately employees openly speculated sation. demotion, manage- and her complaints reason for Beckwith’s her having that her an adverse effect оn job ment situation ignored. health were distress
The elements of an intentional infliction of emotional judgment claim the evidence and record. supported to intentional infliction of emotional distress is affirmed. Compensatory Damages allowed damages no should be compensatory
Dillard asserts Beckwith steps because the evidence did not show that took were cal- damages, expert’s figures her аnd her economic mitigate seventy-five. retire at age culated on the she would assumption *7 forty-one, which reads as jury given The was instruction number follows: her that duty mitigate damages,
Plaintiff Beckwith has a to damages. to minimize her is an affirmative burden to act had the burden of that failed to proving plaintiff Defendants burden, satisfy her To defendants mitigate damages. (1) were that the time in there prove during question must available, which substantiаlly equivalent jobs plaintiff obtained, have and that failed to plaintiff Beckwith could seeking in one. diligence use reasonable “substantially employment means phrase equivalent” The virtually which affords identical promotional opportunities, conditions, working and job responsibilities, compensation, Beckwith previously as the which position plaintiff status held with the defendants. v. the instruction is taken from Sellers paragraph
The second
1189,
(5th
1990).
F.2d
1193
Cir.
Dillard
Delgado College, 902
“substantially
the
objected
phrase
equivalent”
because
Instead,
suggested
Dillard
the
in a Title VII federal case.
applied
duty
to seek reasonable
second
should read “she has
paragraph
work
any
the Plaintiff should
employment;
accept
alternative
taken from
language
which
could
This
perform.”
she
Fitzgerald,
v.
Company
Southern Pacific Transportation
241, 243,
1234,
(1978).
per-
That case involved
P.2d
and
Liability
Federal
Act
Employers’
sonal
action under the
injury
we
discharge
Fitzgerald
case. In
was not a tortious constructive
were in
fide offers
any
it was “unclear whether
bona
also said
made,
alternative
they
fact
whether
related to reasonable
’ Id.
a man with
disabilities.’
respondent’s
employment
we
of an instruc-
wrongful discharge
approved
In a similar
case
damages
to
duty mitigate
tion which
that an
provided
employee’s
alternate
seeking
acceptance
employment.”
included “the
and
Hillhaven, Inc.,
v.
Beales
was instructed
recognized
jury
In Beales we
that “[t]he
obligation mitigate
damages by seeking
the
to
her
Beales had
not find employ-
other
She testified that she could
employment.
in
returned Reno in 1988. Apparently,
ment
her
once she
field
(emphasis
the
believed her.” Beales at
Dillard failed to evidence present her future losses. Once expert concerning Beckwith’s economic jury damages, found Beckwith was entitled to “it was entitled and award ... weight appropriate variables [sic] 102, 825 The compensatory amount.” Beales at P.2d 216. dam- awarded substantial ages jury proper suppоrted evidence in the record.
Punitive Damages
‘ never entitled as a matter of plaintiff punitive damages ‘A is entirely denial discretion of right; allowance or rests the 824, 826, trier 101 Nev. 711 Sharp, the of fact.” Ramada Inns v. 1, (1985). “It the of the trial court to responsibility is whether, law, determine a matter of the has offered plaintiff as substantial evidence of malice in fact to dam- support punitive v. Fletcher Jones Las ages Vegas, instruction.” Wickliffe оf 1295, 353, 356, (1983) (citations omitted). 661 P.2d the damages compensatory Punitive are limited to three times given using the 1We note that “trial courts” should refrain from instruction in this case. Beales states the standard. proper where, here, $100,000 damages, compensatory damages 42.005(l)(a). more. NRS
Dillard objected judge’s to the trial decision allow the nation- worth, Nevada, Inc., wide just rather than the worth of Dillard’s to determine the amount damages to аward. We have punitive allowed a nationwide previously jury worth when a decides puni- damages. tive we have Specifically, recognized wealth of a “[t]he award, defendant directly is relevant to the size of an which is meant to deter the defendant from his repeating misconduct as well as him punish for his behavior.” Ainsworth v. past Combined Co., 587, 593, Ins. 104 Nev. 763 P.2d (citing Waters, 210, 213, Midwest Inc. v. Supply, 89 Nev. 510 P.2d (1973)). 878-79
The general rule the concerning award of excessive punitive damages has been previously by stated this court:
Heretofore, we have the recognized subjective nature of puni- tive damages and the absence of by workable standards which to evaluate the propriety such an award. we Accordingly, have allowed that determination to rest with discretion of the trier of the fact unless the evidence introduced at trial shows that the jury amount awarded would financially destroy or annihilate the defendant in which event we would an attempt appropriate adjustment of the award. Casino, Inc.,
Hale v. Riverboat 100 Nev. (1984) (citations omitted). case, In this trier of fact determined the amount of punitive damages, and the trial court reduced the sum to an amount allowed statute. award will not financially destroy or Therefore, annihilate Dillard. damage award punitive is affirmed.
Bеckwith is entitled to post-judgment interest on the punitive
damage award.
recently
ruling
We
modified our
in Ainsworth con-
cerning post-judgment
punitive damages.
interest on
We held that
should accrue to
compensate
party
interest
loss of the
use of the money
judgment
awarded in the
until paid. See Wohlers
v. Bartgis,
(1998);
382
Attorney’s Fees to attorney’s to the award of fees Beckwith. objects
Dillard Prior to an offer of was made Beckwith pur- trial settlement and 68. She settle the mat- agreed suant to 17.115 NRCP to NRS $93,500 $187,000, a to as to each of ter for of broken down total 17.115 and the two Dillard entities. The of NRS NRCP purpose time 68 to and the court the and money system, parties is save for They the reward a who makes reasonable offer taxpayers. party who an offer. punish party accept Muije and the refuses such 667, 559, Co., Vegas v. A Cab 799 P.2d North Las (1990). 561
“It the judge is within the discretion of trial court allow “[ujnless attorney’s Rule 68” and the trial pursuant fees arbitrary court’s exercise of is court capricious, discretion ’ ruling will not the lower court’s on Schouweiler appeal.’ disturb Co., (1985). Nev. Yancey v. litigated it defense in faith and it good Dillard claims its reject not it to Beckwith’s We have set bad faith for offer. forth regarding the a trial exercise in discretion judge factors must its attorney’s the allowance of fees: faith;
(1) brought good the claim was in plaintiff’s whether (2) judgment whether the defendant’s offer of was reasonable amount; (3) timing and faith in its whether good in both and the the reject decision to offer and to trial plaintiff’s proceed faith; or in bad and whether the grossly unreasonable the and sought by justified fees offеror reasonable in amount. Thomas, 579, 588-89,
Beattie hearing, The in a it was judge, separate trial found unreason- the given beginning able to such “rock-bottom” offer at reject any the incurred. discovery expense of before had been The case trial, trial of the representation court considered quality lawyers, hourly billing, reputation timing of the rate of necessary and of the and all of the set reasonablеness offer factors forth Beattie. The trial deducted from the total amount judge sought had attorney’s previously paid fees the amount Dillard discovery abuses. There no abuse of discre- sanctions attorney’s judge, tion on the trial award of fees was part it affirmed. proper and is jury on verdict for judgment compensatory puni-
tive affirmed. damages is Agosti
Rose, Young, Shearing, JL, L, Becker, C. concur.
Maupin, J., concurring:
I agree with the result reached I majority. write sepa- rately my disagreement to note with thе majority’s affirmation of containing instruction the language from NRS 616C.530. That provision priorities sets for workers’ compensation insurers in injured efforts to return workers work. priorities articulated legal do not create a standard governing an employer’s an injured re-assimilation of worker to the work I can see place. Thus, no legislative intent to that effect. the instruction was couched in terms of a specific duty that did not apply employ- However, ers. because the statutory language did not add a great deal to the recovery standard of respondent required below, satisfy the giving of the statutory instruction was harmless error.
I also wish to
in this
emphasize
separate
my view that
opinion
the enactment of NRS 616D.030 was in way
no
calculated to over-
Harrah’s,
turn our decision in
Hansen
(1984),
progeny.
its
SULLIVAN, Appellant,
CARL OTIS
v. THE
Respondent.
NEVADA,
STATE OF
No. 31991
December