Gutierrez v. Sundancer Indian Jewelry, Inc.

Id.; In see also justifiable cause.” 868 P.2d 1266 “without Masa, St.3d Adoption re Ohio GUTIERREZ, Plaintiff-Appellant, Paul 140, 142 N.E.2d Here, found that Fa the trial court 21, 1991, and indigent August

ther was JEWELRY, INDIAN SUNDANCER ap counsel court-appointed ordered that INC., Defendant-Appellee. However, represent the rec pointed him. to shortly job lost his indicates that Father ord No. 13767. separated from Mother and he after Appeals of Mexico. filing unemployed at the time adoption. Considering Father’s petition for Dec. 1993. status, objections to indigent his continued through adoption, his efforts counsel son’s his Feb. 1994. Certiorari Denied visitation, to and his written demand obtain J.J.B., for the return on March say unable to that Petitioners estab

we are convincing evidence that

lished clear impliedly consented to the child’s

Father has

adoption. argue that under Section

Petitioners also

40-7-51(C), if the order terminat that even reversed, ease parental rights is determination of

should be remanded custody party should be awarded

J.J.B., a determination of the best based on determina of the child. Absent a

interests unfit, no basis to Father is there is

tion that custody.

deprive Father of his son’s See L., Mary 108 N.M. at at 452.

re

CONCLUSION dispensing Father’s judgment

consent, parental rights, and terminating his re- petition adopt to

granting the J.J.B. for the We remand with directions

versed. custody of J.J.B. to the

trial court restore Father, taking steps to minimize the

Natural par- trauma the child and the

emotional

ties.7

IT SO ORDERED. IS J., C.J., BIVINS,

MINZNER, concur. plan natural father and argument, Department J.J.B. with the reunite At oral counsel for the steps as would minimize Department take such other indicated that parties. psychiatrist) develop trauma all expert (psychologist emotional Proper, Offices,

David Garcia Law Albu- querque, plaintiff-appellant. Reynolds, Crider, David G. Calvert & P.C., Bingham, Albuquerque, for defendant- appellee.

OPINION BLACK, Judge. (“Plaintiff’)

Paul Gutierrez filed a discrimi- complaint nation with the New Mexico Health Department, and Environment Occu- pational (“the Health Safety Bureau Bu- reau”), alleging that he discharged by was (“Defen- Sundancer Jewelry, Indian Inc. dant”) in retaliation for requesting that the investigate Bureau usage chemical and em- ployee problems health at Defendant’s work- place. entered into a settlement agreement which approved by the Bu- 11,1990. January 14,1990, reau on May On Plaintiff complaint filed a in district court seeking damages due to wrongful fraud and rights NMOH- employee’s under par- cising such a motion for discharge. filed Defendant required that further arguing Plain- The settlement judgment SA. summary tial Occupa- notify Chief remedy -wrongful for his claim Defendant tiffs sole (“the Safety Bu- Bureau through prior administra- discharge was tional Health Chief’) steps writing De- all it had brought the Bureau. before reau tive claim agree- argued comply that Plaintiffs claim with the settlement further taken to fendant by agreement the wrongful discharge Finally, barred the was ment. settlement for dis- Plain- by and satisfaction. The provided doctrine of accord that it was not to be used summary judg- partial wrong- a trict court entered as an admission tiff or the Bureau agreement holding that the settlement by ment doing Defendant. Plaintiffs approved by the Bureau settled entering five months after Approximately discharge wrongful and therefore claim for agreement and terminat- into the settlement to an accord and satisfaction gave rise proceeding, Plaintiff ing the administrative forth in Plain-

wrongful discharge claim set seeking complaint court a in district filed (Plaintiff complaint. vol- court tiffs district wrongful dis- damages to fraud and due claim.) his fraud Plaintiff untarily dismissed alleged complaint, Plaintiff charge. In that appeals. by trade and had that he a mechanic was presents questions that record We hold by from his mechanic Defendant been lured summary judg- precluding fact of material par- promises pay and position more Defendant’s accord and satisfaction ment on plan. He profit-sharing ticipation a a theory; complaint states that Plaintiffs con- result of Plaintiff “[a]s claimed that a wrongful dis- cause of action for his tacting Plaintiff was fired from OSHA Occupa- charge; that the New Mexico and Plaintiff Jewelry.” position at Sundancer Act, Safety Health and NMSA tional wrongful his was contended that & (Repl.Pamp.1988 §§ to -25 Cum. 50-9-1 compli- right to seek of his violation (“NMOHSA”), does not Supp.1992) working In his practices. ance with safe remedy. Plaintiffs exclusive complaint, requested both Plaintiff amended damages against punitive

compensatory and Defendant. I. FACTS par- for discovery, Defendant moved After the Bureau to originally contacted Plaintiff arguing that since summary judgment, tial use of investigate possibility parties to were both and Defendant Plaintiff workplace at certain chemicals Defendant’s Bureau, disputed claim before a Plaintiff, employees, causing and other

was settled, go not could they the court had pains lips. Plain- suffer chest and swollen beyond court district the settlement. wrongfully dis- alleged he was tiff findings: following safety entered the charged reporting condition. for finding [50-9-25] Upon that Section ap- investigation, the Bureau was After employer, OSHA violated has been willing on Plaintiffs to file a suit parently a on behalf power to institute suit has the 50-9-25. Plain- pursuant to Section behalf alia, obtain, back inter tiff, however, pro- the administrative settled employee to pay reinstatement of all information ceeding agreeing to have itself, however, not job. does OSHA from De- removed regarding his termination adjudicate authority to whether that Defendant requiring files and fendant’s wrongful purposes was termination or references provide “neutral better” judicata. How- estoppel or res collateral inquired about Plaintiffs work anyone who ever, can- mean that OSHA does not post in agreed to history. Defendant also employee to employer and the help not workplace copies conspicuous in its locations wrongful dis- [50-9-25] settle a stating that Defendant of notice charge claim. against any employee for exer- discriminate approved agreement 3. The settlement tract court not restricted to the bare agreement OSHA was between Plaintiff and may words of the consider Defendant this case. What was context in which the was made to original settled was complaint: Plaintiffs parties’ determine whether words are discharged making that he had been ambiguous). An accord and satisfaction complaint to That is the same OSHA. accompanied by must such acts decla- complaint Plaintiff makes in II Count rations as amount to a condition that if mon- Complaint the Amended herein. ey satisfaction; accepted, is to be full and the acts declarations must be of such upon foregoing, 4. Based upon party money character that the to whom the the affidavits and evidence submitted to that, is offered is bound to understand he Court, the settlement accepts money, accepts subject he to Sundancer, performed by giving rise to an such conditions. Los Atrevidos Preferred accord and satisfaction of the claim set 217, 218, Risk Ins. 107 N.M. 755 Life forth II as Count of the Amended Com- (1988). showing P.2d 62 While such plaint. possibly be could made from the settlement partial The summary district court entered itself, application document princi- of these judgment dismissing Plaintiffs claim for ples characteristically requires more an in- wrongful discharge. Plaintiff then voluntari- vestigation into surrounding circum- (fraud) ly complaint dismissed Count of his See, e.g., stances. Smith Constr. Co. v. brought appeal. and Columbus, #1226, Knights Council N.M. P.2d (reversing sum- QUESTIONS II. THE RECORD RAISES mary judgment holding correspon- and OF MATERIAL FACT PRECLUDING surrounding dence the execution of the SUMMARY JUDGMENT THE ON agreement created doubt as to whether it ACCORD AND THE- SATISFACTION operate was intended to as an accord and ORY satisfaction). argues initially Defendant that since the district court did not find the terms of The district court’s determination agreement ambiguous, the settlement refer agreement present case was parol parties’ ence to evidence of the intent is unambiguous is reviewed as a matter of law. inappropriate. upon Defendant relies cases 399, 401, Mobley, Levenson v. 106 N.M. Mississippi from support and Maine to its 174, 176 (1987). agreement An is unam making contention that “[t]he a settlement biguous language permits its when one express rights

without reservation consti interpretation. reasonable See id. doWe complete tutes accord and satisfaction all agree with the district court that parties claims of the immediate to a settle agreement unambiguous. settlement arising ment out same transaction or agreement concerning is unclear occurrence.” We do not believe the rule scope or adopted extent Mississippi applies in settlement. Para- and Maine in graph agreement One of the New Mexico. refers to a

separate settlement of Plaintiffs workers’ claim, compensation raising thus an inference willing go Our courts have been to present agreement was intended to simple outside the terms of a settlement apply only to the matters specifically re- agreement to determine the nature of the require- ferred therein. Other than the scope transaction and of the intent of the negative ment that Defendant remove in- parties all regarding whether such regarding formation Plaintiffs termination was intended to be an accord and satisfac See, V, Mellekas, e.g., tion. from Defendant’s Mark Inc. files “neutral (1993) (in regarding or better” references Plaintiffs interpreting parties employment, the intent of ato con- the remainder of the settlement eonclusory Defen- and therefore insufficient to es- agreement appears be directed at significant obligations imposed material issues fact compliance with tablish dant’s enough par- motion for prevent discrimination to defeat Defendant’s by the Bureau summary judgment. Based on the docu- against potential tial whistleblowers. submitted, disagree. shall and affidavits we agreement concludes: this Set- ments “[N]or Agreement tlement be used Gutierrez analogous faced an Our Improvement Division the Environmental Biava, Bank v. situation Western Sundancer, way, against any except case, 550, 787 P.2d In that of the terms and conditions enforcement promissory on a plaintiff bank sued note. hereof.” It could be inferred that Defendant However, alleged that the defendant Bu- anticipated further either the action plaintiff agreed accept had a transfer of prevent sought reau Plaintiff partnership exchange for a com- interest being settlement used as promissory note. plete release on the If ac- wrongdoing. evidence of further defendant, resisting summary a motion for anticipated, unlikely it is tion was then judgment, filed his own affidavit submit- agree- settlement intended the testimony deposition sup- his own ted ment be an accord and satisfaction. his port of contention accord satisfac- 552, P.2d As present tion. Id. at at 832. in the Other documents introduced the case, appear analogous party seeking summary present ease to those insuffi- the found summary judgment judgment alleged a that such statements were cient sustain support merely eonclusory In mo- and insufficient to defeat Smith Construction. of its 552-53, summary partial summary judgment, judgment. for Defen- Id. at tion Supreme personnel file as found that dant filed Plaintiffs entire at 832-33. The Court testimony resisting summary complete party file. Bu- the well as the Bureau The the regarding understanding pages correspon- judgment his reau’s file consists dence, memoranda, scope and of an was suffi- diagrams, and notices. nature the to meet his burden to “come forward A review of such documents could lead to cient proceeding evidentiary the conclusion that the administrative with facts sufficient defeat summary judgment participants not as a for on the accord- was viewed the motion 553, remedy any damage and all defense.” Id. at procedure to and-satisfaction at 833. suffered Plaintiff. again grant par-

In reversed response to Defendant’s motion for summary judgment summary judgment, Plaintiff filed his based on accord tial that, stating January argument in Bennett Kis- and satisfaction “[t]he own affidavit luk, In Agreement 814 P.2d 89 did not settle Settlement ease, dispute Jewelry plaintiff the had hired the defen- my with Sundancer that attorney arising prosecute her claims wrongful discharge also dant or fraud.” Plaintiff During slip tort from a and fall accident. the filed an from the Bureau Chief. affidavit that, plaintiff the defen- although proceedings Bu- the dismissed The affidavit indicated the pursue her agree- and retained new counsel approved the settlement dant reau Chief Defendant, filed a motion seek- Plaintiff and the claims. defendant ment between recovery ing forty-percent share of tort agreement “did not or settlement address adjudicate wrongful discharge, his fee. Id. at 814 P.2d at When any claims of agreement on litiga- plaintiff reached an the prevent future nor was it intended to claim, required injury concerning personal she was wrongful tion claims attorneys’ which the defendant’s claim any related claims thereto are settle settlement, both scope § Pursuant to the fee included within 50-9-25 fees. plaintiff the defendant executed a challenges the NMSA 1978.” Defendant stipulation for and release of all in the of Plaintiff and settlement statements affidavits months the execution ground they are claims. Id. Five after the Bureau Chief release, plaintiff of that sued defen- intended universal accord malpractice, inflic- alleging dant intentional satisfaction. suffering, seeking tion of tre- emotional Id. damages

ble NMSA 36- under (Repl.Pamp.1984). 2-17 The defendant Bennett, Applying we the dictates of summary judgment ground moved for on the trial, including must reverse and remand for prior an accord release constituted parties in the factual issue of whether the that, argued plaintiff satisfaction. a universal accord and tended satisfaction.1 times, pursue at all she had intended to her defendant,-and against ini- claims

tial fee was III. settlement she con- NMOHSA DOES NOT PROVIDE attorneys’ cerned resolution of THE REMEDY FOR EXCLUSIVE prevented fees claim had consum- her WRONGFUL DISCHARGE personal injury mation of the settlement. The district court found that the settle- 112 N.M. at 814 P.2d at 92. The defen- approved by ment the Bureau resolved all dant, bar, like Defendant the case at ar- claims between Plaintiff and Defendant. gued attempting plaintiff required Therefore the district court was not him; “sandbag” the defendant contended to confront the issue of whether NMOHSA possibility potential claims for precludes employees in such situations from malpractice, intentional infliction of emotional pursuing legal suffering, misrepresentation remedies. never en- Since tered his he question mind when executed the release we have found that there is attorneys’ dispute. fee The dis- Id. fact parties’ regard- material as to the intent granted summary trict court judgment, and scope agreement, of the settlement Appeals reversing, the Court of affirmed. must now we confront Defendant’s alterna- said: argument, tive “that Plaintiff did not have any retaliatory remedies to him for available circumstances, language Under these provided than those Sec- said, upon cannot be a release mo- summary judgment, 9—25[.]” tion tion for be a uni- to 50— versal accord and satisfaction. From both overt manifestations of and When a right statute creates a new parties the states of mind of the it can be imposes duty, having a new no in counterpart parties inferred that the did not intend a law, provided common remedies in and universal accord satisfaction. Under generally statute are to deemed be exclusive (rule 1986, SCRA 11-301 of evidence re- City cumulative. Munro v. Albu of garding presumptions general in civil 306, 321-322, 733, querque, 48 N.M. 150 P.2d actions), these inferences to be are (1943); Casualty 742 Globe Am. Patterson v.

weighed by against trier of fact the Co., 544, 541, 396, 101 N.M. 685 P.2d 399 presumption intended a [that (Ct.App.1984); First Nat’l Bank v. South complete respective settlement of their Supply west Yacht & 101 Corp., Marine claims]____ 431, 437, (1984) 517, 684 P.2d 523 (Stowers, J., In dissenting). order to deter (cid:127) Accordingly, rights we mine whether creates reverse and remand for NMOHSA new trial, duties, including the provides factual issue whether thus exclusive reme- 330, 337, 663, challenges holding 1. The dissent herein St. Elevator 41 N.M. 68 P.2d (1937). development application Bennett as an aberration -in the Bennett is but an this noted, general event, principle. As contract law. we have New well established we do recognized long party present any- Mexico has receiv- say that a not understand the dissent to ing payment payment thing original understand must such to different than the dissent in Ben- be in interpretation, full settlement all claims before the bar Whatever nett. the merit precludes payee obligated apply of accord and interpreted satisfaction we are to the law as Atrevidos, bringing litigation. majority. Delgado, further Los Bennett Alexander v. 218, 62; 717, 718, 778, (1973). 107 N.M. at 755 P.2d at v. Prince Miller 84 N.M. 507 P.2d Mexican, 76, 79, 738 P.2d dies, preexisting 106 N.M. merely common- codifies v. N.M. Elec. (1987); Shovelin Central duties, rights and we must answer three law (1) 293, 304, Coop., has rec- 115 N.M. 850 P.2d questions: whether New Mexico bar, employer con- ognized duty of an In the at defendant a common-law ease 50-9-25, workplace; provide employees with a safe which itself a to cedes that Section (2) so, retaliatory discharge for existing duty, if whether codification of an common-law duty reporting clearly public policy violations that common-law in favor enunciates a to public policy giving rise a Vigil, violations. See contravenes thus reporting safety and, so, remedy; Thus, whether 688-89, common-law at 619-20. N.M. at 699 P.2d any indication the NMOHSA that there is allowing employer we an to retaliate find legislature to intended its remedies reporting against employee an unsafe for preempt the common-law exclusive and thus working appropriate public to offi- conditions remedy. contrary public policy to cials is New gives rise a common-law reme- Mexico Employers Have in New Mexico a A. dy. Duty Employees to Provide with Safe Workplace that, argues except The dissent for NMOHSA, public policy is no sufficient there that, recognized Mexico has at retaliatory discharge prohibit under law, employer rea common an must exercise complaint in this case. But NMSA cf. employee sonable care an (establishing § (Repl.Pamp.1991) 52-1-28.2 Perez, workplace. Koenig safe 104 N.M. against employer cause action an who (1986); Arvas discharge, discharges, threatens or other- Jewelers, Feather’s 91 582 P.2d against an for seek- wise retaliates (Ct.App.1978). benefits). compensation Since workers’ NMOHSA, terms, own cannot itself its Allowing Employer Retaliate B. action, give the dissent rise to common-law Against Employee Reporting Unsafe wrongful no action concludes Working Appropriate Conditions Public at discharge exists in case bar. Howev- Contrary Policy to Public Officials er, public statutes are not sole source of New Mexico Leonard, A New Common policy. Arthur S. Termination, Employment Law 66 recognized public- has New Mexico (1988). Thus, 631, 658-59 N.C.L.Rev. employ policy exception to common-law inquiry questions must include the of wheth- Arzola, v. Vigil 102 ment-at-will doctrine. public policy er are other sources there 688, 613, 682, (Ct.App. P.2d 619 N.M. 699 and, context, so, apply whether grounds, 101 1983), part on other rev’d sufficient, policy scope public of such is 687, (1984), N.M. 687 P.2d 1038 modified prohibit as a matter of common law to retal- G., Inc., 279, Boudar v. E.G. & 106 N.M. iatory discharge reports employee of an who (1987) 280-81, 491, (allowing P.2d 742 492-93 working unsafe conditions. application), retroactive modified Corp., Prods. Chavez v. Manville 108 N.M. notes, some courts dissent (1989) (low 371, As 643, 649-50, 777 P.2d 377-78 pub only permissible source of have held the ering plaintiffs proof allowing burden E.g., distress). policy lic is a statute or constitution. recovery for emotional Conse Ins., 1083, 4 Sentry Gantt v. Cal. 4th Cal. may quently, employee at-will recover in an (en 874, 881, 680, Rptr.2d 824 687 P.2d discharge tort when his contravenes a clear banc). Chavez, however, contrary position, This is to public policy. mandate of 108 N.M. 647, long precedent Mexico established employ at 777 P.2d at 375. Whether recognizes judiciary well policy which that the as ee has a sufficient to recover for stated legislature appropriate is an source of wrongful the tort of determined Santillanes, re v. The New public 47 basis. Sanchez case-by-case policy. N.M. -48

140, 150, 138 503, (1943); may P.2d 509 Barwin v. illegal may jeop- be or which 183, 192, Reidy, 175, 62 N.M. 307 safety, P.2d 181 ardize accepted health and con- (1957); Community Southwest cepts employee loyalty; Health Servs. nevertheless we Smith, 196, 201, 40, v. 107 N.M. 755 P.2d 45 conclude that on balance actions which en- (1988). position especially apropos This hance the enforcement of our laws or ex- conditions, public policy pose when the relates to a rule of unsafe or otherwise serve State, singularly common public purpose, law. See Hicks v. 88 some will inure 588, 589-92, 1153, (1975). public____ 544 P.2d the benefit of the 1154-57 inquiry The relevant is not limited to previ Since New Mexico courts any particular whether regulation law or ously recognized employer’s duty pro violated, although has been may workplace, vide a safe merely NMOHSA co important, emphasizes but instead whether scope dified duty. and detailed the of that “important public policy some interest em- The fact legislature codify acts to bodied in the law” has been furthered public policy which underlies a common- whistleblowing activity. not, law action does absent some evidence of Globe, 82, Wagner City v. 150 Ariz. 722 contrary, an intent to the abolish the com (1986) (en 250, banc) (citations omit- State, mon-law action. Valdez v. 83 N.M. ted). 231, 233, 497 P.2d cert. denied. 1077, 694, U.S. 93 S.Ct. 34 L.Ed.2d 666 Legal recognized scholars have also (1972); Whitaker, 710, Gonzalez v. protecting only those whistleblowers whose 714, 274, (Ct.App.1982). Many specific statutory duty actions derive from a courts, fact, recognition have held that of a origin is inconsistent with the of the tort of remedy wrongful discharge wrongful discharge and results in broad so- reinforce, supports, necessary and is often Perritt, Jr., Henry cietal harm. H. Employ- designed promote safety statutes (2d § ee Dismissal Law and Practice 5.19A Co., workplace. Paige Henry v. Kaiser J. Malin, Cum.Supp.1989); ed. Martin H. Pro- (9th 857, Cir.1987), denied, 826 F.2d cert. tecting Retaliatory the Whistleblower From 486 U.S. 108 S.Ct. 100 L.Ed.2d Discharge, 16 U.Mich.J.L.Ref. (1988); Cloutier Great Atl. & Pac. Tea 1140, 1144(1981); 121 N.H. 436 A.2d considerations, Based on such numerous Adamo, Inc., Tyrna Mich.App. cf. years courts in recent recognized (1987) (remedies 407 N.W.2d under common-law cause of allega action based on overlap Whistleblower Protection Act Michi wrongful discharge by employees tions of gan OSHA remedies when is dis attempted' require who management charged reporting safety retaliation for remedy working unsafe conditions or who violations). Court of Arizona filed a claim E.g., based on such conditions. explained protecting its basis for whistle- Gardner, D'Angelo 704, v. 107 Nev. expose workplace blowers who conditions 206, (1991); 218 Smith v. Atlas Off-Shore public policy, regardless which violate of the Serv., Inc., (5th 1057, Boat 653 F.2d 1062 policy, following source of such in the terms: Cir.1981); Sorge Wright’s v. Corp., Knitwear whistleblowing activity We believe that 118, (E.D.Pa.1993). F.Supp. 832 120-21 public purpose which serves a should be protected. long employees’ So as actions Nothing C. in NMOHSA Indicates merely private proprietary, are not but Legislature Preempt Intended to Com- public good, instead seek to further the mons-Law Remedies expose illegal practic- decision to or unsafe encouraged. recognize es should be We Argument 1. Defendant’s that there is a tension between the obvious having employees societal benefits in argues Defendant that Section 50-9- expose access to proof legislative information activities 25 is of a intent to make the

49 1296, per cu 540 1298-99 Defen- A.2d under NMOHSA exclusive. remedies aff'd 1371, riam, 226, implied 557 A.2d and cert. argument on the law of 115 N.J. relies dant’s denied, proposition Vigil for the 110 S.Ct. 107 and cites 493 U.S. remedies public policy (1989); Skillsky Lucky and a statute defines that when L.Ed.2d 353 poli- (9th Stores, of that provides remedy Inc., for violations 893 F.2d 1093-94 imply an reme- cy, Cir.1990). will not additional courts An Municipality In Reed v. of bar, however, Plaintiff has dy. (Alaska In the at 1989), case chorage, 1155 action, not a reme- preexisting common-law Alaska Court confronted the issue dy implied from NMOHSA. (which the state contains of whether OSHA functionally language equivalent to that language nothing find We NMOHSA), by providing an administrative legislature in- which indicates the NMOHSA remedy, was intended to be exclusive: be that its exclusive. Fur- tended remedies ther, jurisdic- face, from Statute] a review of cases 18.60.089 [Alaska On its safety occupational Indeed, interpret prohibition. tions which it contains no such supports our that our health acts view own pre- to us that the statute does not seems Safety Act does not Occupational Health instituting ac- employee clude from an an preempt existing common-law remedies. recognized tion in Alaska under a tort theory. Statute 18.60.-

contract Alaska 089(b) employee may file a states an Federal Precedent complaint with the commissioner. Such 50-9-25(B) virtually identical to permissive required action is Occupational the federal provision process specifically remedial initiate the upon Safety Act and Health which was process This con- contained statute. 660(c) (1985). patterned, § Sever U.S.C. investigation of sists of the commissioner’s recognized al federal courts However, employee’s complaint. 660(c) § was not language 29 U.S.C. de Statute] does not show [Alaska 18.60.089 signed preempt common-law remedies part legislature on the intent employee may have under state law. that an preclude suing on his 121; Sorge, F.Supp. Kilpatrick at De legislature own If the had wanted behalf. S.P.C.A., F.Supp. County laware private common law cause foreclose Int’l, (E.D.Pa.1986); McElroy v. SOS action, expressly. so it could have done (N.D.Ill.1989). Inc., F.Supp. 807-08 (footnote omitted, Reed, P.2d at 1158-59 supported by leg is also This conclusion emphasis original). history Congress which indicates islative remedy parallel intended to 4.Purpose NMOHSA pro duty to for breach workplace. employees a safe Senate vide interpretation of NMOHSA Defendant’s Health, Labor Public Oc Committee preemptive remedies is also of common-law cupational Safety and Health Act purposes of the the stated inconsistent with (1970),reprinted in S.Rep. No. 91-1282 Initially Act. we that Section 50-9- note 5177, 5186. U.S.C.C.A.N. 21(A) states: Nothing in shall construed [NMOHSA] 3. State Precedent enlarge affect or ... to or diminish or held in manner the common law language Courts which have considered em- statutory rights, or liabilities of duties OSHA, which state codes from the federal ployers employees under laws of after, patterned concluded that are also injuries, occupa- respect to state with language in the acts indicates a contained diseases, or death of em- tional or other provide parallel rather legislative intent to of ployees arising out course remedy. of Lepore Na- than an exclusive N.J.Super. employment. Mfg. & tional Tool passage directly discharged apply reporting working While this does not to are for unsafe wrongful discharge, language being would have no in the broad of conditions interest conditions, in provision rehired work such with or demonstrates the tenor of the pay. without back intending statute as not to affect the com- rights that relate to the mon-law health purpose If the of is to encour- NMOHSA addition, safety employees. In of Section 50- violations, age reporting safety of 9-2.1(B) provides public that “it is in the case, without doubt such is the then we find comprehensive pro- interest to establish a highly unlikely it that NMOHSA would also gram for the disclosure of information about preempting have had the intent of common- places employ- hazardous substances in purpose. law actions that further such De- provide whereby procedure ment and to interpretation fendant’s limit- would use the employees may gain access to this informa- ed remedies available under NMOHSA to NMOHSA, primary purpose tion.” The very goal legisla- defeat the set forth then, reporting safety is to ensure viola- ture. Bureau, compensate tions to the not to em- ployees wrongful discharge resulting for IV. CONCLUSION reporting from the of such violations. Cf.

Wiggins Corp., v. Eastern Associated Coal We hold that the district court erred in granting summary judgment W.Va. S.E.2d on Defendant’s purpose penalties imposed (primary theory. of the accord and New satisfaction Under precedent provisions of the Mexico the affida- under antidiscrimination opposition vits filed Plaintiff safety reporting mine acts is to ensure summary judgment motion for raised suffi- safety rather than violations vindication questions regard scope cient with to the employees’ rights; preemption); no Carsner the settlement and the intent of Freightliner Corp., Or.App. motion. to defeat the (antidiscrimination 398, 403 section of designed prevent a different labor code reject argument We also Defendant’s evil than common-law claim for emotional provides Plaintiff NMOHSA his exclusive employee allegedly distress when fired for remedy wrongful discharge. for The com- job safety complaining practices), about re- requires employers provide mon law denied, 691 P.2d 483 view Or. reasonably workplace. employees with a safe policy prohibits Mexico Public dis- interpreted provide If NMOHSA charging employee reporting for unsafe remedy, may discourage exclusive fact working Finally, conditions to the Bureau. disclosing employees information about legislature we find that the did not intend places employ- hazardous substances remedy the exclusive NMOHSA fact ment. This conclusion follows from the employee alleging wrongful discharge for an available under remedy, reporting safety violations. retaliation discharged are NMOHSA for workers who disclosing such information is an action summary judgment Therefore the brought at the discretion of the Director of reversed; district court is each side shall Improvement the Environmental Division appeal. bear its own costs on seeking to restrain violations of NMOHSA IT IS SO ORDERED. appropriate including and “for other relief rehiring or reinstatement of the DONNELLY, J., concurs. position pay.” back his former 50-9-25(B). Many employees HARTZ, J., dissents. rely upon finding the Director suffi- wish to investigation and then cient cause after HARTZ, Judge (dissenting). discretionary upon bringing a action or provide. by majority opinion It can also relief such action could The result reached way many concern me as much as the it fairly employees assumed that who does not explic- as the majority’s underlying of facts claim discussion both gets there. The (1) Therefore, pre- itly Defendant must by accord settled. raised defenses Defendant — of a com- of accord and satisfaction satisfaction and absence vail its defense glosses ig- complete presumption of over unless the of a accord mon-law cause action — that have commanded the nores doctrines and satisfaction rebutted. authority. weight of respect great majority opinion ignores New The the opinion majority’s freewheeling fear establishing presump- the precedent Mexico generate great deal of confusion for

will a complete of tion accord satisfaction. practitioners and the courts. Consequently, it does not address Plaintiffs arguments of evidence and in terms whether I. ACCORD AND SATISFACTION they opinion The presumption. rebut the speaks only the in terms whether evidence As stated in the second sentence the agree- below and the terms the settlement majority opinion, parties entered into a “[t]he ambiguity regarding ment the establish agreement.” question before settlement The an accord and satisfaction cover- existence of terms, express and im- us is what are the Nevertheless, the ing present the claim. agreement. plied, of the Our task settlement by majority sup- upon matters relied ever is not to determine whether there was agree- port a contention that the settlement parties, which distin- contract between subjects ambiguous proper ment is are also guishes this of the eases case several determining whether the of consideration upon majority: relied Los Atrevidos v. complete presumption of a accord and satis- Ins. 107 N.M. Risk Preferred Life I shall faction has been rebutted. therefore (1988); Co. 755 P.2d Smith Constr. arguments raised address the evidence and Columbus, 50, 519 Knights 86 N.M. majority opinion. majority opin- Biava, (1974); Bank v. Western ambiguity on ion its determination of rests (1990). P.2d 830 by Plaintiff the Bureau chief affidavits undoubtedly agreement The settlement re- agree- and on the settlement statements complaint solved discrimination filed ment itself. against Defendant Plaintiff with Depart- Health and Environment Mexico A. The Affidavits.

ment, Safety Occupational Health and Bu- (the Bureau). agreement reau does not My greatest majority’s concern is with question of other specifically address Plaintiffs affi- reliance on the two affidavits. may against Plaintiff have had Defen- claims 11, 1990, January davit “The Settle- states: law, ordinary aAs matter of contract dant. my dispute Agreement ment did not settle properly could describe the settlement one wrongful Jewelry for dis- with Sundancer ambiguous on that score. As a affida- charge or fraud.” The Bureau chiefs however, pre- public policy, courts matter Agreement ... vit Settlement “[The] states: that when have settled dis- sume any adjudicate claims of did not address they accord pute complete “intended and wrongful discharge, nor was intended against respective claims satisfaction of their concerning wrongful litigation prevent future underly- arising [the out of facts each any claims there- claims or related explicitly dispute].” settled Bennett scope to which are included within Kisluk, § 50-9-25 NMSA 1978.” public presumption advances “The presump- do not rebut affidavits avoiding litigation policy interests needless complete accord and satisfaction. tion of a prove places on the releasee a burden They allege the writ- not, do not existence by the re- contracting parties did they agreements, nor do settlement, ten or oral side an accord and lease and intend surrounding the Here, any circumstances question discuss there is no satisfaction.” Id. assist present settlement claim arises out of same way, agreement. acting specified of the from in a so made as to interpreting the terms Rather, they merely understanding justify promisee state how the affiants a in that a agreement, asserting made.”); Farnsworth, interpret commitment has been agreement did not foreclose Plaintiff §§ supra, 3.6 to 3.9. any litigation regarding dis- further his understanding An undisclosed of a contract charge by allegations Defendant. These interpretation of the is also irrelevant significance. private legal no contract. As stated in a to Comment Section party thoughts of a to a contract are of no “Interpretation of the Restatement: consequence interpreting a the terms of meaning given contracts deals with the contract. The test of what a contract means language by parties and other conduct one, objective parties is an based on what the meanings by than rather with established surrounding said and did and the circum- party law. But the relevant intention of a stances. him that manifested rather than dif- majority’s The source of the error can ferent undisclosed intention.” Learned probably phrase be traced to the use of the expressed proposition Hand as follows: “meeting of the minds” contract law. Of- has, strictly speaking, nothing A contract requires ten it is written that a contract a individual, personal, to do in- or “meeting parties. of the minds” of the parties. tent of the A contract is an obli- phase problems creates because it can readi- gation by the attached mere force of law to ly interpreted unconveyed to refer to the words, parties, usually certain acts of the thoughts parties. interpreted, of the As thus ordinarily accompany represent phrase application leads error however, If, it known intent. were Farnsworth, contract law. See E. Allan Con- proved by twenty bishops par- that either (1982) 3.6, § tracts at 113 n. 2 [hereinafter words, ty, when he used the intended (recommending Farnsworth] abandonment of something meaning than else the usual metaphor” “meeting the “much abused them, imposes upon which the law he minds”). reason, For that Restatement held, would still be unless there were some (Second) of Contracts avoids use of mistake, something mutual else of the “meeting of the minds” in the black letter course, appear sort. Of it propositions. example, states words, acts, parties, they general rule that “the formation of a peculiar meaning attribute a to such words requires bargain in contract which there is contract, they meaning use in the a manifestation of mutual assent to the ex- prevail, only by will but virtue of the other change Explaining and a consideration.” words, and not because of their unex- phrase “meeting decision not to use the pressed intent. minds,” e to Comment the section states: Bank, City Hotchkiss v. National 200 F. “Meeting the minds.” The element of (S.D.N.Y.1911).

agreement is sometimes referred to as a “meeting parties of the minds.” The recognize appel that some New Mexico give ap- most contracts actual as well as may late decisions contribute the confu assent, parent but is clear that a mental example, sion. For v. Middle Rio Garcia party bargain reservation of a to a does District, Conservancy Grande impair obligation purports he (Ct.App.), cert. de here, phrase undertake. The used there- nied, (1983), 663 P.2d 1197 fore, assent,” is “manifestation of mutual wrote, binding “In order to establish a “agreement” § as in the definition of agreement, plaintiff prove contractual must (“An meeting of the minds was arrived at § between See id. ais manifesta- part tion of mutual or that a mutual assent on the of two or 2(1) (“A persons.”); objectively party.” § promise more id. manifested each To confusion, quot- manifestation of intention to act or refrain avoid one should amend the (as accepted in money, accepted, if is Supreme did re- language Court ed satisfaction; be such that the by and it must unpublished opinion) insert- cently an party is offered is bound to proposition to whom it parenthetical so that it, that, if reads, meeting therefrom he takes prove a of the understand “plaintiff must subject parties or he takes it to such conditions. arrived at between the minds was (in words) mutual that a Atrevidos, 218, 107 N.M. at 755 P.2d at Los objectively party.” manifested each was 571) Pitts, (emphasis (quoting 206 P. at reading of Garcia is consistent with This added). phrase The “bound understand” Co., Insurance Trujillo v. Glen Falls clearly implies objective test —the acts of an (1975), P.2d 209 which was N.M. must be such that a reasonable the offeror quoted support as the for the cited Garcia under- offeree in the circumstances would quoting a proposition. Trujillo, after Geor- acceptance stand that the is satisfaction minds, requiring meeting of the gia opinion virtually identical. It the claim. Miller is said, mutuality requirement must be “This states: objective manifestations of the found at 211. The satisfac- parties.” Id. at 540 P.2d To constitute an “accord and quote dependent upon an earlier New Mexi- an offer of the Court went on to tion” law stated, controlling money, necessary in- opinion payment “[T]he it is co mutually parties money ex- in full satisfaction of the tention of the is be offered creditor, intent of a pressed assent and not the secret or claim of the and be demand party.” accompanied by Id. such acts declarations money amount to a condition that as majority opinion’s citation to Miller v. accepted it to be in full satisfaction be Co., Elevator Prince Street character that the credi- and to be of such (1937), and Los Atrevidos its P.2d 663 tor is bound so to understand such offer. misleading. do not footnote 1 is These cases (emphasis 41 N.M. at 68 P.2d at 667 receiving support party that “a the statement added).1 payment such payment must understand of all claims before the in full settlement majority opinion To the extent precludes the of accord and satisfaction bar sug- and Miller as relies on Los Atrevidos bringing litigation.” Nei- payee from further gesting no accord and satisfac- that there is subjective test for adopts a ther decision parties explicitly agree that tion unless the been an ac- determining whether there has possible disputes governs all the settlement contrary, On the Los cord and satisfaction. parties, it is mistaken. between Indepen- quotes Pitts v. National Atrevidos in each of those cases was whether issue Co., 316, 206 P. 571 71 Colo. dent Fisheries accepted as full payment toward a debt was (1922), that: proposition Neither payment only partial payment. the extent to which a set- opinion satis- addressed to constitute an accord and In order interpreted to faction, money of one claim should be necessary that tlement arising a resolution of other claims of the include offered in full satisfaction should be underlying particu- In demand, facts. accompanied by such acts from the same and be lar, presump- opinion addressed to a condition neither and declarations as amount least, doubt At the there is a reasonable Construction much. to the same effect is Smith 1. Also parties gave to whether the conduct as Supreme Court wrote: Co. The accord and to the existence rise satisfac- far from clear that an We conclude that it is Consequently, doubt reasonable tion. by the was executed accord satisfaction judg- summary possibility forecloses the language parties. con- conduct of the ment. ap- appellee’s not such that tained in letter is 86 N.M. at Smith Construction added). pellant Obviously, that the letter the court (emphasis was bound to understand at 288 objective relying manifestations represented offer to settle their on the and check fact, says parties. dispute. appellant’s letter tion, guage in recently supports majority’s reaffirmed our Bennett Bennett, that a settlement encom- Bennett “From view. said: both the overt passes claims. all related manifestations and the states parties of mind of the it can be inferred that Biava, 552-53, at 787 P.2d at did not intend a universal accord 832-33, support majority. also does not satisfaction.” N.M. at readily present distinguishable It is from the Yet, at 92. I am reluctant to believe that in case. The issue Biava was whether the those few words were intended to overturn prove defendant could the existence of an long throughout law settled the United agreement by testimony stating only oral States, including New Mexico. I am not agreement the had reached an that witness certain what the words “the states of mind of opposing party on with the certain terms. parties” convey, the were intended to but I The court in essence held that the witness believe that can Bennett best be understood acceptable lay used shorthand to describe an simply limiting presumption as the usual of a Here, exchange promises. parties both general accord and satisfaction when one agreement admit that a written exists. The party agreement attorney to the is an who meaning. sole issue is its The affidavits represented party. has the other this case state the affiants’ understand- language ing of the of a document. The Agreement. B. Terms of the Settlement question testimony before us whether that agreement particular a written had a mean- majority opinion The also relies on two ing in the witness’s mind is relevant to the provisions agreement in the settlement legal consequences agreement. of the That indicating ambiguity regarding whether a question was not addressed Biava. complete accord and satisfaction was intend- provision ed. One is the reference the should also note the statement Mark agreement settlement to a settlement of V, Mellekas, 778, 782, Inc. v. 114 N.M. compensation Plaintiffs workers’ claim. (1993), that order to “[i]n majority’s the view this reference indicates meaning ambiguous determine the of the present agreement “that the was intended to terms, may finder consider extrinsic fact apply only specifically to the matters re- language evidence of the and conduct of the why ferred to therein.” I fail to see one parties surrounding and the circumstances Perhaps should draw that inference. some agreement, as well as oral evidence of the language in compensation the workers’ claim parties’ intent. American Bank Com- agreement suggest settlement Builders, merce v. M & G scope of the settlement here. But on the (1978).” The citation to present record there is not even evidence prop- American Bank Commerce is for the compensation that the workers’ settlement ambiguous, osition that “Where contract is arose out of the same facts as the claim for parties the intent of the is to be ascertained wrongful discharge in this case. The refer- language parties from the and conduct of the present agreement ence in the to other unre- circumstances, surrounding and the and oral litigation any way lated does not in counter evidence as to that intent is admissible.” 92 presumption of the settlement of all N.M. at 586 P.2d at 1081. In other arising surrounding claims out of the facts words, acceptable oral evidence of intent is discharge. presumption Plaintiffs of a intent; testimony expressing past not one’s general pre- accord and satisfaction is not rather, testimony regarding it is oral sumption every that claim par- between the conduct, language, surrounding circum- only presumption ties is settled. It is that stances from which one determines the ob- complete there is accord and satisfaction of jective manifestation intent. arising out underlying claims of the facts is, however, prece- clearly generally There one New Mexico claim. settled See Ben- nett, troubling. 222-24, dent that is somewhat lan- Some N.M. at 814 P.2d at 90-92. up: parties undoubtedly To sum en- provision upon majority The other which agreement. tered into a settlement Under opinion relies is the statement settle- agreement agreement established New Mexico law the agreement cannot- ment disputes any way presumed against except to settle all between used Defendant parties arising underlying of the out facts enforcement of the terms conditions presumption majority the settled claim. That agreement opin- itself. rebutted the affidavits Plaintiff and “It ion asserts: could be inferred Defen- Bureau chief because those affidavits stated anticipated further action either the dant previously no more than the affiants’ uncom- sought prevent or Plaintiff Bureau subjective understanding of munieated being settlement used as agreement, legal no settlement is of wrongdoing. If any evidence further ac- consequence. The references in the settle- anticipated, unlikely it is tion was then ment to Plaintiffs workers’ com- agree- intended the settlement against pensation claim and to no future use to be an and ment accord satisfaction.” agreement Defendant of the settlement do argument Again, distinguish to fails be- rebut presumption the because the refer- underly- same arising tween claims from the fully complete ences are with consistent presumed ing facts —which claims are to be arising settlement claims of Plain- of the out provision settled —and claims. discharge by tiffs Defendant. this basis On simply question protects against Defendant summary alone entitled to Defendant was its agreement of the the use settlement as an judgment on the defense of and satis- accord by possible it future admission claims addition, cake, frosting faction. on the (even contemplated) presently if not such as the and is defense of accord satisfaction retaliatory-discharge claim another em- strongly provision in buttressed the the ployee retaliatory-discharge or even a claim agreement requiring to settlement Defendant discharged if by Plaintiff he to be in the were relating itself rid of all records to Plaintiffs provision certainly future. The is no indica- discharge. parties litiga- foresaw further tion regarding particular discharge

tion the at here.2 issue II. CAUSE ACTION FOR RETALIA- OF TORY DISCHARGE Finally, majority opinion fails to take provision in the into consideration a settle- Even Defendant were not entitled to argues strongly in ment summary judgment on the defense of accord all support presumption that claims satisfaction, complaint have should discharge arising from Plaintiffs re- were to been dismissed for failure state a cause agreement. Paragraph by the 2 of solved retaliatory discharge. Disregard- for action the settlement states: “[Defen- occupational safety state stat- and federal agrees to information dant] remove all from utes, sufficiently poli- public there no clear concerning records [Plaintiffs] its termi- cy always discharging that forbids an em- 4,May provision nation of 1989.” This alleged ployee reporting safety hazard. significant credulity it strains highly because , If, however, complaint were not other- agree give that to think Defendant would satisfaction, I wise accord and barred up relating of all control records Plaintiffs would remand to Plaintiff with discharge any possibility if there were of opportunity complaint. to amend the litigation regarding discharge. further A person construing Perhaps jarring portion reasonable the settlement the most summary my views is failure to agreement as whole would have conclude above safety contemplate occupational consider in de- did not such statutes ' Therefore, termining I litigation. public policy. further will majority opinion suggests disagree spe- respond faction. I but cannot also that Plain- (cid:127) majority opinion personnel ex- tiff’s file indicates that the settlement cities because the does not plain complete was not intended as a accord and satis- basis of its inference. retaliatory point discussing ap- cause of action for address that before analysis retaliatory-discharge discharge. propriate of a claim. majority I am not certain whether opinion relies on NMOHSA or OSHA find disregard I reason the New public supporting policy its determination Occupational Safety Health Act Mexico To that Plaintiff stated cause of action. (NMOHSA) determining rec- whether to relies, majority I opinion extent that the so retaliatory claim for ognize a common-law believe it is mistaken. To the extent it requires itself is that NMOHSA sources, public policy finds in other sufficient 50-9-21(A) me to. NMSA ignores policy important believe (Repl.Pamp.1993) states: great weight and the of au- considerations Nothing Occupational Health and thority. Safety Act shall be construed or held to began Ever since courts commentators supersede any or in manner affect recognize cause for retalia- a tort of action Compensation Act the New Workers’ tory discharge, they struggled with the Occupational Disease Mexico Disablement setting limits difficulty of to the tort. With- enlarge Law or to or diminish affect policy public out on what sources of limits any other manner the common law or stat- action, justify can cause of the tort could utory rights, employ- liabilities of duties or logically expand require just cause employees under the laws of this ers employee, contrary an to dismissal of respect injuries, occupational to state employment of at will. common-law doctrine employees death of or other diseases or arising employ- out of course of or Supreme The recent New Mexico ment. decision in v. Shovelin Central Mexico 293, 115 Cooperative, Electric N.M. 850 P.2d majority opinion agree I with the that “the (1993), 996 reflects this concern. Shovelin language provision broad of the demon- stated, linchpin “The of a cause of action for the tenor the statute as not intend- strates of discharge by discharg- is retaliatory whether ing rights affect that to the common-law employer complaining employee the safety employees.” to the health and of relate ” public policy.’ ‘clear mandate violated a of view, my right a for common-law to sue 303, Id. at P.2d at a clear 850 1006. Such retaliatory allegation of an discharge because gleaned “may be from the enact- mandate safety statutory of a hazard comes within legislature ments and the decisions of of rights ... ... of language of “common law question Id. The courts.” remains respect injuries, employees ... ... with meaning is the of “clear mandate.” occupational or of other disease death employees arising of out of or course holding provides in Shovelin itself majority opinion employment.” The offers guidance point. Although most citi- on that view, of the support its observation in agree right zens would of citizens to share, preempt I does not a NMOHSA public important run for and hold office is an retaliatory discharge. claim for common-law society, free feature of our Shovelin refused 50-9-21(A) Yet, just as Section states recognize employee cause of action shall common-law NMOHSA not “diminish” running who claimed that he was fired for rights, it also states that NMOHSA shall not mayor community. being elected his “enlarge” them. I infer that a common-law provision no court found constitutional retaliatory discharge is independent claim of “specific enough expres- or statute that was a NMOHSA, not be and NMOHSA should policy public to state a claim for sion enlarge it. 29 used to or diminish Because relief the facts of this case.” Id. at under 653(b)(4) (1988) § occu- U.S.C. federal 306, at 1009. 850 P.2d (OSHA) safety pational and health act has 50-9-21(A), import Supporting same as our Court’s cautious approach jurisdic- are the in other believe that OSHA also does affect decisions

57 jurisdictions simply expressions public policy tutional as a re tions. Some Gantt, 4 employee’s basis of the claim.” altogether recognize fused 881, Cal.Rptr.2d at at 687.3 824 P.2d retaliatory discharge, cause of action for leaving legislature. to the See matter particular Of interest is the cause of action Co., 902, 572 903 Scott v. Otis Elevator So.2d retaliatory discharge whistleblowing, (Fla.1990); Corp., Pavolini v. Bard Air 88 alleged Although public good in this case. 714, 451 N.Y.S.2d 288 A.D.2d Some may encouraging employees derive recognize only employee the tort when an is employer assert misconduct to outsiders refusing illegal perform fired for act. wish, employees whenever the there are also Co., George 597 See Adams v. W. Cochran & likely negative consequences. An in- to be (D.C.1991); Glory v. A.2d 28 Peterson vestigation by generally an outsider will be House, 653, (S.D.1989); 443 N.W.2d 655 disruptive employer. expensive to the Int'l, Express v. 800 Hancock One S.W.2d damage likely regard- is to result Substantial 634, recog (Tex.Ct.App.1990). 636 Others allegation true false. less whether the nize the tort when the violates true, allegation disruption Even if the constitution, public policy expressed by unjustifiable expense may al- statute, regulation or a based on statute. leged wrong is not a substantial one. 239, Sterling Drug Oxford, v. See 294 Ark. employee right does not have 380, (1988); Sentry 743 385 v. S.W.2d Gantt Indeed, disregard these concerns. the com Ins., 1083, 874, 878, Cal.Rptr.2d 1 Cal.4th 4 recognizes mon that an has a law (1992) (en banc); P.2d 684 824 Romack duty loyalty” of “an undivided and unselfish v. Public Serv. 499 N.E.2d employer. to the Las Luminarias (statutory (Ind.Ct.App.1986) right only); Isengard, N.M. Council the Blind Douglas Corp., Johnson McDonnell (Ct.App (Mo.1988) (en banc); Peterson v. S.W.2d .1978); see NLRB v. Local Union No. (Utah 1992) Browning, Workers, Int’l Bhd. Elec. 346 U.S. of (public policy support cause of action for will (1953). duty S.Ct. 98 L.Ed. 195 This of retaliatory discharge statutory “when the loyalty requires employee not to whistle- language expressing public the conscience is Thus, necessary. reasonably the blow unless clear and when the affected interests of soci duty loyalty requires of that an common-law substantial”). ety Although are a fair num (1) employee not whistleblow unless the alle jurisdictions, including ber of other New gation significant wrongdoing by the is of Mexico, Shovelin, see 115 N.M. at (2) allegation good in employer, the is made public policy underly P.2d at state that (3) faith, objectively allegation the is reason ing this cause of action can be derived from (4) able, employee the the blows whistle decisions, judicial it turns out to be rare for only making to cor after reasonable efforts recognize for courts to a cause of action problem through the efforts within the rect retaliatory discharge in the absence of Malin, Protecting company. Martin H. See public policy expressed in con supporting a Retaliatory Dis the Whistleblower From stitution, statute, regulation. the or As Cali charge, 16 307-14 U.Mich.J.L.Ref. stated, recently fornia policy Public does not [hereinafter Malin]. “[Notwithstanding lively the theoretical de recognition tort support of the common-law public policy bate over the sources of wrongful discharge whistleblowing un of for claim, may wrongful discharge support whistleblowing a less the satisfies these condi have, practice, exceptions majority opinion ignores with few courts tions. The statutory public policy. relied to some extent on or consti- however, wrongful discharge. recently, jurisdiction More 3. One that has not relied on constitu- statutory policy public Hampshire Supreme tional or sources of the New Court has retreat- Hampshire. In Cloutier v. Great Atl. & Pac. position. ed somewhat from that See Short (1981), the Tea 121 N.H. 436 A.2d 1140 16, 136 N.H. School Admin. Unit No. jury public court left to the the determination of A.2d 364 policy support that would a cause of action for accomplish gon reporting statute is criminal applying first task restricted activity or setting causing or an information com- standard for determin- this test is the plaint against to be filed someone. Section particular employer ing misconduct whether against protects Montana retalia- 659-550. significant wrongdoing constitutes such poli- reporting “public of tion for a violation justifies whistleblowing. Whatever the policy” cy,” “public the as but statute defines standard, more precise the the better. A provi- policy by “constitutional established of of statement the boundaries the clear statute, sion, or rule.” administrative Sec- employer the of of action will inform cause 39-2-903(7). pro- extends tion Connecticut conduct is forbidden law. More what municipal employees report who tection to recognition if of the tort of importantly, re- practices, mismanagement “unethical or discharge whistleblowing is taliatory for in- authority” by municipal employ- abuse of encourage appropriate whistle- tended to 31-51m(b). Pennsylvania er. Section unlikely blowing, vague to influ- standard protects against employees discharge statute potential whistleblower who does not ence a “waste”; reporting “wrongdoing” for or losing employment a result of to risk as wish or statute defines “waste” as “conduct omis- Malin, supra, making allegation. See at abuse, result in sions which substantial mis- advantages precision of 286-87. Given use, or destruction loss of funds or resources tort of of common-law re- the definition belonging to or from Commonwealth derived whistleblowing, taliatory sources,” political and defines or subdivision general reliance of the courts on statutes statute, wrongdoing as of a violation ordi- public policy supporting as the source nance, regulation, or or code of conduct eth- discharge, retaliatory tort of one protect “designed to interest of ics requirement conclude that could Shovelin’s employer.” public or Section policy” public “clear mandate of is satis- of a protects reports regarding Maine statute “a only if whistleblowing context fied practice put at or that would condition risk statutory allegation concerns a violation —or safety” or the health law, least a violation some enacted such at 833(1)(B). Thus, person. another statute, ordinance, regulation. weight although exceptions, there are legislative authority appears to be regard, provisions In that find the whistleblowing protected in general is to be whistleblowing statutes to be various state all, report- protected it should be at I am aware of fourteen state stat interest. statutes, rules, regulations, violations general. protect whistleblowing utes like. and the (Supp.1993); § Conn.Gen.Stat. 31-51m See (Supp.1992); ch. Fla.Stat.Ann. 448.102 Haw. in light developments In of current (1988); § Rev.Stat.Ann. 378-62 Me.Rev.Stat. retaliatory regarding law common 833(1) (West 26, 1988); § Ann. tit. Mich. legislation reflecting- public policy and the in (West 1981); § Ann. Comp.Laws 15.362 states, say I find it difficult to that (1993); § 181.932 Mont.Code Ann. Minn.Stat. policy protecting a “clear” there is whistle- 39-2-904(1) (1993); § N.H.Rev.StatAnn. allege wrongdoing other blowers who than 34:19-3(a) (1988); § § 275-E:2 NJ.Stat.Ann. regulations. of statutes and I violations (McKin (West 740(a) 1988); § N.Y.Lab.Law that extend would think Shovelin would 4113.52(B) 1988); ney § Ohio Rev.Code Ann. cause of action for whistleblow- common-law (Anderson 1991); § Or.Rev.Stat.Ann. 659.550 further, perhaps protect except no 1423(a) 43, § (Supp.1992); tit. Pa.Stat.Ann. subject reports practices of conditions or that (1991); § 36-15-3 R.I.Gen.Laws grave persons danger. Francis v. See Florida, Hawaii, 698, 701, Nine of the Michi Hosp., Gen. 726 Memorial statutes — Minnesota, (tort gan, Hampshire, (1986) New Jer 852, retaliatory New dis- York, Ohio, sey, Rhode Island — are charge New and is intended to address “unlawful or Brown, statutes, misconduct”); reports limited to Palmer v. violations serious (1988) ordinances, (recog- 752 P.2d regulations, The Ore- Kan. 689-90 or rules. rely Mexico cannot whistleblowing blowing in New re- nizing actionable tort law). regulations pro- or the Because NMOHSA OSHA garding infraction serious thereunder, 50-9-21(A) tort should not be mulgated of NMOHSA and the cor- (1) whistleblowing con- recognized unless prevent Plain- responding provision of OSHA presents, practice that cerns a condition or relying on either NMOHSA tiff from safety. grave danger in to health or addi- accompanying regulations or their OSHA tion, claim, be entitled prevail the whistleblower should not Plaintiff could his common-law protection unless the whistle- only proved claimed and that his here he (2) proves allega- alleged alleges blower whistleblowing practice a condition or (3) faith, good in that there grave danger. tion was made that created objectively for the was an reasonable basis requirements for the that the whistle- As (4) allegation allegation, and was faith, objec blowing good in with an be made company only after reason- made outside the basis, only tively reasonable after ex internally. attempts relief able obtain efforts, there haustion of reasonable internal complaint does not al- appears to be a trend the more recent Because Plaintiffs impose requirements. lege any four elements of the statutes to such Good of the above Maine, action, complaint required by the statutes of faith is common-law cause Ohio, Oregon, Pennsyl Hampshire, complaint If the were New should be dismissed. satisfaction, or reasonable cause vania. Reasonable belief accord and howev- not barred by Maine, New required by er, the statutes of permit Plaintiff to amend (Ha Ohio, Island. Hampshire, important and Rhode complaint. regard, In this it is requires allegation that the not be know necessary allega- waii it is not note that false, requires that ingly true, and Minnesota assuming that even turn out to be tion reckless.) knowingly false or not be internal re- after exhaustion of reasonable Maine, Florida, Hampshire, statutes of New could porting requirements, worker York, require the Jersey, New and Ohio New faith, good objectively reasonable maintain a ordinarily prob employee report to first Thus, allegation. Plaintiff is not belief employer. have also im lem to the Courts Bureau apparent failure of the barred posed requirements as a matter of these complaint Bureau.4 agree his to the Palmer, 752 P.2d at 690 common law. See good (whistleblowing must been faith); Meginnis Ford Schriner (1988) (action Neb. N.W.2d good faith

lies acts when reporting em upon reasonable cause BARNES, Petitioner- Charles violation); ployer’s suspected criminal Appellant/Cross-Appellee, cf. Hosp., 17 Seery Haven Conn. v. Yale-New (plaintiffs fired App. 554 A.2d 757 SHOEMAKER, Respondent- Gail impaired physician refusing to work with Appellee/Cross-Appellant. physician must evidence No. 14896. Carter-Wallace, actually impaired); House v. Inc., N.J.Super. 556 A.2d Appeals of Mexico. denied, 154, 564 A.2d 874 cert. 117 N.J. 21, 1993. Dec. retaliatory (employee claimed dis who Denied Feb. 1994. Certiorari complaint company re charge for his within products recov garding can contamination prod only if he had reasonable belief that er contaminated).

ucts were common-law cause up,

To sum because the retaliatory discharge for whistle-

of action for by usage Defendant. chemical alleges were caused complaint filed in court that Plain- 4. The several violations The Bureau citation listed complaint the Bureau because of tiff filed a headaches, chests, (resulting fine of in a total aching it considered serious a concern that $360), storage they combustible employees related to but lips Defendant’s swollen suffered OPINION HARTZ, Judge. dissolving marriage

The decree Husband and Wife ordered Husband to make monthly payments beginning to Wife $600 age periodic when he reached 55. These community payments represented her share of his retirement benefits. As we construe decree, the district court did not retain jurisdiction modify monthly-payment award. More than a decade later Husband sought a modification of the as to decree payments ground future on the “it is no longer judgment equitable that should prospective application.” SCRA 1-060(B)(5) when, (Repl.1992). We hold that here, ground urged the sole for the modifi- original cation is that the award was based projection on an erroneous of the value of the benefits, retirement such a modification is improper unless the reason for the error in projection is a circumstance that party seeking opportunity relief had no foresee or control. We therefore reverse the modifying original order district court decree.

I. BACKGROUND appeal summary We decide this on our accept calendar. We as true the uncontested representations docketing of fact in the state- parties. ments filed See State v. Calanche, (Ct.App.1978). Husband and Wife were Michigan in they married in 1956. In 1967 Albuquerque moved to so that Husband accept position could with Sandia National (Sandia). Laboratories Husband filed for di- one-day After a vorce 1980. trial which Wife, Husband, witnesses were L’Esperance William A. and Marcella M. provided expert testimony an economist who Neville, Albuquerque, petitioner-appel- on the value of Husband’s Sandia retirement lant/cross-appellee. plan, court entered final the district decree April decree valued and Siegel, Kelsey, H. Sanford Atkinson & benefits, P.A., retirement Albuquerque, respondent-appel- divided Sandia residence, lee/cross-appellant. community couple’s and other as- chemicals, liquids guard machinery. garding and failure to hazardous but these were la- citation also mentioned certain violations that beled “other than serious” and resulted in no- respirators related to and worker education re- fine to Defendant.

Case Details

Case Name: Gutierrez v. Sundancer Indian Jewelry, Inc.

Court Name: New Mexico Court of Appeals

Date Published: Dec 16, 1993

Citation: 868 P.2d 1266

Docket Number: 13767

Court Abbreviation: N.M. Ct. App.