Lihosit v. I & W, INC.

resentencing, but affirm as to all other legislature multiple punish that the intended conduct, issues. unitary for the the court lenity apply presume the rule of should IT ORDERED. IS SO legislature multiple that the did not intend Franklin, punishment.” 116 N.M. at PICKARD, JJ., concur. ALARID and State, 1213; also v. 865 P.2d see Swafford (1991); 112 N.M. Charlton, P.2d v. 115 N.M. State (Ct.App.1992),

577, 844 P.2d 827 applied Colorado lenity analogous People the rule of facts P.2d 262 banc). Lowe, (Colo.1983)(en 660 P.2d 1261 LIHOSIT, Plaintiff-Appellant, David F. argued princi- “that The defendant therein ples jeopardy prohibit[ed] him from of double degree being convicted of two counts of first W, INC., Corporation, A New Mexico & killing.” murder for one Id. at 1265. The Defendant-Appellee. Supreme Court vacated the defen- Colorado No. 16285. multiple convictions with lan-

dant’s murder guage apropos present in the ease: Appeals of New Court of Mexico. problem presented by The most difficult 17, 1996. Jan. appeal com-

this is whether the defendant 6, 1996. Certiorari Denied March per- mitted one or two offenses. We are establish, suaded that the evidence could case, single that a act of

as it does

killing committed both after delib- could be perpetration of one of

eration and Murder af-

the enumerated felonies.... felony murder are not

ter deliberation and separate

denominated Code offenses, only ways in

independent but first-degree criminal may charged prosecuted.

murder be any legislature has not manifested could con-

clear intent that a defendant be than one kind of first-de-

victed of more

gree there is but one victim. murder where lenity requires

The rule of that the first- fa-

degree murder statute be construed to the defendant. That construction is

vor only convicted

that a defendant can be killing. first-degree murder for one

one (footnote omitted).

Id. at not believe the New

38. We do legislature manifested clear

Mexico has could be convicted of

intent that Defendant by vehicle type than one of homicide

more therefore remand this

for each victim. We to the trial court with instructions

case Defendant’s homicide vehi

vacate three of 66-8-101 and

cle convictions under Section

Perry Abernethy, Abernethy C. Law Of- fice, P.C., Carlsbad, Plaintiff-Appellant. Tinnin, Jr., Nason, P. Robert Paul G. Hin- kle, Cox, Eaton, Hensley, Coffield & P.L.L.C., Albuquerque, for Defendant-Ap- pellee.

OPINION BLACK, Judge. (Lihosit)

David F. employed Lihosit W, (I W). a truck driver I & Inc. & complaint, alleged Lihosit I & W violated public policy by terminating clear him be- cause he refused to return to work late at night to drive a truck in violation of state driving regulations. and hours-of-service I & argued W it did not have knowledge of this explanation for Lihosit’s failure to return to and, therefore, work could not have dis- charged him in retaliation for his involve- in protected activity. The case comes to this Court on Lihosit’s appeal summary of a judgment based on stipulated undisputed facts. We affirm.

I. FACTS job Lihosit’s with I & W was to drive a large water, oil, tractor transporting trailer rigs. and chemicals to oil These materials job were to be any delivered to the site at time it necessary. leaving After work at p.m. May 8:35 Lihosit received a telephone call at p.m. home around 10:30 The call was from Artesia Ser- vice, independent business with which & relay W contracted to messages to I & W employees. Ralph Lewis of Artesia Answer- ing relayed message Service to Lihosit to return to work within the hour because an I & W customer had lost circulation in an oil well and needed Reading water. the facts favorably plaintiff, most Lihosit told Lewis he was too tired to work and would be morning the next at 7:00. Lihosit said replied, Lewis twice may your job.” “This be Lihosit then told Lewis that additional part work on Lihosit’s would violate “hours- regulations. in-service” I & did not have knowl- Lihosit court found that W dispute over what there is a While failing Lewis, alleged dispute edge that Lewis did of Lihosit’s reasons there is no told and, therefore, the termi- anyone report I & that to work tell associated with engaging in a in retaliation for to return to work because nation was not Lihosit declined activity. fatigued because it would was too and/or regulation. did tell any legal Lewis violate Richardson, supervisor at I &

Larry Lihosit’s RE- II. RETALIATORY DISCHARGE QUIRES W, told to come back that after Lihosit was A CAUSAL CONNECTION work, replied, days. “I I will Lihosit work to PROTECTED CONDUCT BETWEEN morning.” in the Richard- be there at 7:00 TERMINATION AND WRONGFUL of Lihosit’s contention son was not informed a contract be In the absence of May 13 would have that further service on employee, New Mexi tween an unemploy- until Lihosit’s violated state law employment is terminable “at- presumes co September compensation hearing on Hartbarger Frank Paxton 115 will.” 10,1991. 665, 668, P.2d 779 cert. N.M. stip- following The trial court set forth the 1118, 114 S.Ct. U.S. undisputed facts in its order ulated and (1994). employment “An at-will L.Ed.2d 387 summary judgment: granting by par relationship terminated either can be reason, I & employment Lihosit’s ty any A. David for reason or no time Larry by Richard- liability.” W Inc. was terminated Id. New Mexico courts without have, however, Plain- May recognized as a result of son on an capac- in his employee refusal to return to work general tiffs rule when an dis ity transport operator to assist engaging of a for in an act charged in retaliation I restoring drilling policy. circulation to an & W K- by public See Paca v. favored 479, 481, Corp., Inc. customer’s well. Mart 108 N.M. (1989). “Consequently, em an at-will any employ- not tell

B. David Lihosit did and, his dis 14, 1991, ployee may recover tort when May I Inc. on ee of & W public Richardson, charge contravenes a clear mandate Larry the I & W particular v. Sundancer Indian policy.” Gutierrez Liho- employee who terminated David Inc. Inc., 41, 47, P.2d Jewelry, 117 N.M. alleges in the reason he employment, sit’s denied, 117 N.M. (Ct.App.1993), Complaint for his refusal to return his (1994). Following general 869 P.2d 820 work, the sole basis which refusal formed principles, an ly recognized tort David Lihosit’s termination. for retaliatory discharge seeking recover for Inc., and in employee of I & W C. No his a causal connection between must show Richardson, had actual Larry particular discharge. his Shove protected actions and May David knowledge on 1991 that Coop., N.M. Elec. lin v. Central return to work be- Lihosit had refused to (1993). 996, 1006 293, 303, P.2d to work claimed that the return cause he hours of service have violated the would the causa- Supreme considered Our as set out regulations of State v. Manville requirement Chavez (Repl. Sec. 65-3-11 N.M.S.A.1978 Corp., 108 N.M. 777 P.2d 371 Products n Safety and Motor Carrier Pamp.1990) case, longtime In that Chavez was (MCS) 11:395, seq., et as al- regulations expressly refused to employee who Manville Complaint. leged in the corporate used in a his name to be allow corporation nonetheless lobbying effort. The 14, 1991, May I & fired Lihosit On mailgram ad- name to a night. affixed Chavez’s previous failing return to work a United States Senator dressed to Lihosit sued & W On June including undersigned employees, claiming fired stated retaliatory discharge, he was legislation support of favored urged the maximum refused to exceed he found out corporation. When Chavez under New driving hours allowed number of name, he unauthorized use his about the granted court sum- The district Mexico law. fol- explanation. The angrily demanded against Lihosit because mary judgment month, lowing employment any capacity, Chavez notified his with Manville in was Turner, supervisor, overall Loretta province it was well within the fact being Subsequent- laid off for a month. abiding reach an finder to conviction ly, job Chavez was notified his had been discharge in response non- only eliminated. Chavez was informed that cooperation legislative with Manville’s two foremen were and he was now agenda. currently worst of the three foremen 648-49, Id. at 777 P.2d at 376-77. employed. no such We have facts the case before The New Mexico Court reversed dispute us. no There was Chavez that a directed verdict in Manville’s favor and supervisors made known to his presented jury ques- held that these facts well before termination that he refused lobby tion as to whether Chavez’s refusal support employer’s political activity. to Congress support posi- in employer’s of his however, Here, stipulated it is that no such retaliatory was discharge tion the basis for a conveyed message anyone to at at I & W 647-48, claim. Id. at at 777 P.2d 375-76. Rather, any time before Lihosit was fired. Supreme unnecessary The Court found it us, on the record before the trial court found: adopt a standard that would the burden shift dispute is no that employer, There employer employee to the once the intro- W, and, particular Larry I & Inc. Rich- justify duced “evidence of that circumstances ardson, employee who terminated motive, inference of an such as Plaintiff, knowledge did not have actual at closely conduct adverse followed the time terminated the Plaintiff that 2, action.” Id. at 648 n. 777 P.2d at 376 n. 2. the Plaintiff refused to return to work Rather, the Court recited in the exten- detail his return to work would violate jury question sive evidence which a created regulations of hours service discharge on whether the inwas retaliation state, refusal which formed the sole basis Chavez engaging protected activity: in a for the Plaintiffs termination. following When we consider as true presented by evidence that Chavez: The Court in Chavez found suffi- 4, April day partici- after his refusal jury question cient a evidence create toas effort, pate lobbying Manville’s Loretta employee whether the fired because Turner, refusal, said to be informed of the protest political over unauthorized activi- placed an unwarranted critical memo did, however, ty. recognize Chavez re- concerning file Chavez’ his unsafe use of discharge taliatory is an intentional tort. Id. equipment; day certain same 649, Chavez, at at 777 P.2d 377. Unlike supervisor his immediate him that advised issue here is whether & W could have he had better be careful because “Loretta intentionally retaliated when it was unaware you”; requested after that when Chavez position engaging Lihosit’s that he was explanation supervi- an from his immediate legally protected activity. for the sor unauthorized use of his name in widely recognized It is that the em effort, Manville, lobbying shortly ployer’s key motive is element of thereafter, retaliato made a decision to terminate ry Shoe, Co., discharge. Hoy Reich v. him; 32 being that after “laid off’ a month (8th 361, Cir.1994); Ortega F.3d 367-68 v. job he was advised that his been elimi- had IBP, Inc., 513, nated; 1188, Kan. 255 874 P.2d 1194 that after his the num- termination (1994); Serv., Lueck United Parcel 258 production un- ber crews remained 2, 1041, two, (1993); changed Mont. 1044-5 supervisory at Tex and Chavez’ Division-Tranter, Carrozza, as Inc. v. position employee 876 was taken another (Tex.1994). S.W.2d an years assigned “Obviously, had for over 313 five been duties; other cannot fire an that Manville made no retalia place efforts an of 20 for actions which the despite Callahan, years, position, Sangrey other a com- unaware.” Elletta policy pany contrary, Exception Policy instead Public Employment being him ineligible Age: listed for future Proposed Will Rule Comes A

459 should be attrib Artesia Service Analysis, 29 Am.Bus.L.J. Framework for W, (1991); provides no direct American Air to I & but he White v. uted 498 cf. (10th lines, Inc., theory. authority support Cir. of this See legal 915 F.2d 1990) (The Stewart, jury that trial court instructed the Wilburn (1990) (issues wrongful plaintiffs supported “an element of essential P.2d reviewed). ‘plaintiff refused to discharge authority claim was that by legal will not be knew of such perjury argu commit and defendant have considered such an courts which ”). Therefore, employee fails to ment, however, rejected refusal.’ the contention have necessary to sus prove the causal connection logic underlies applied the same retaliatory discharge when tain a claim for knowledge requirement. As the the actual persons respon that the there is no evidence Corley reasoned in v. Jackson Circuit Fifth any knowledge discharge had sible for his 1296, 1300 n. 6 Department, 639 F.2d Police activity alleged in an employee engaged (5th Cir.1981), key case “The to retaliation Corp., 9 protected. Parham v. Carrier to be motive; constructive notice can ... is actual (5th Cir.1993); Talley v. Unit F.3d intent to retaliate.” See not create actual (8th Serv., 720 F.2d ed Postal States Wulfsohn, Comment, Martin Michael D. also Cir.1983), 466 U.S. Policy Palpable Public Marietta v. Lorenz: (1984); L.Ed.2d 541 Carter v. S.Ct. Element, Superfluous and the Sixth (D.D.C.1987) Bennett, 1299, 1301 F.Supp. (1993) (“Retaliation 589, 610 Denv.U.L.Rev. (D.C.Cir.1988); (mem.), aff'd, F.2d 63 840 of a simply cannot ‘exist’ the absence Mining Beckman v. Freeman United Coal retaliate.”). reason 805, 808, Co., 527 122 Ill.Dec. 123 Ill.2d the knowl- The court refused to attribute (1988); Hickman v. 306 see also N.E.2d employees not involved the edge of certain 628, 631 May Dep’t 887 S.W.2d Stores employer in Featherson v. termination to the (Mo.Ct.App.1994). Schools, County Montgomery Public all clear Lihosit’s it is not at While (D.Md.1990) (mem.). The F.Supp. 1021 May evening of return to work on the Featherson, brought alleging, suit plaintiff, any legal have been a violation would alia, promotion she had been denied inter given clear I & W was not requirement, it is had filed previous for claims she retaliation contention, opportunity to consider his the County Montgomery Public against on this assertion. much less retaliate based (MCPS) Equal Employ- under the Schools therefore, termination, cannot have been (EEO) Act. The United Opportunity in anything other than in “retaliation” for granted the school dis- District Court States subordination, clearly appropriate ground summary judgment saying: a trict situation, no where in a termination-at-will absolutely no evidence that There is required. I & W legally at all is Once reason alleged any of the ad- persons involved terminat brought evidence Lihosit was forth Featherson, affecting i.e. verse decisions insubordination, it Lihosit’s became ed for Cen- to the Assessment her non-admission fact as question a of material to show burden acting non-appointment ters and her purpose for the termination. wrongful ato positions, knew at the principal assistant Ass’n, Coop. 105 N.M. Dow v. Chilili were made time that the decisions (once (1986) proponent Plain- any EEO claims. plaintiff had filed evidence, party opposing a brings forth knowledge of other argues that tiff simply argue summary judgment may not imput- be of MCPS should representatives may would secure facts exist which the decisions persons who made ed to the merits). Discharging an at-will trial on the a mat- is nonsense. As question. This public not in itself a violation is fact, person cannot logic and of ter of public policy is a violation of policy. What is adverse, retaliatory decision make an employee with the intent discharging an of which upon information based s/he public policy. mandate of a clear subvert Ross Communications [v. unaware. See protected Lihosit activity he argues that the alleges explanation of provided to Satellite (“if Corp.], employer did not know 759 F.2d ^[355] at 365 of the n. 9 protected activity not, itself, give causal connection to princi- information to the established”). the adverse action cannot be pal.” previous Id. As the discussion indi- cates, the intentional tort of dis- Id. at 1025-26. charge requires knowledge of the favored expends The dissent substantial effort dis- activity by at the time of the tinguishing retaliatory discharge cases Thus, discharge. the central element of re- jurisdictions largely from other based on the taliatory discharge employer’s is whether the contention that emphasizes “New Mexico discharging motive for was the tort, policy goals of the not the ill-motives or employee’s engagement activity. (Dis. 269.) bad employer.” op. faith of the knowledge Without employee’s pro- legal While the dissent support cites no for activity by principal, tected principal premise relies Shovelin v. Central required cannot have the motive. The un- Inc., Coop., N.M. Elec. knowledge agent, communieated of an there- P.2d 996 “linchpin” define the fore, is insufficient to employ- establish the retaliatory discharge. tort of In Shove- retaliatory discharge. er’s lin, however, our Court did not anything indicate there unique or unusu- (Second) Agen Restatement al about recognition New Mexico’s of this cy provides also that it is not sufficient that a Rather, tort. our Court cited and relied party has a means of information in situa upon myriad jurisdictions cases from other where, tions responsible, to be held the act deciding whether Mr. Shovelin stated a cause knowledge. § must be done with Id. retaliatory discharge. of action for knowledge cmt. b. When purposes liability, of tort the central issue is Nor does the dissent cite direct tortfeasor, knowledge of the actual authority for its contention that whatever knowledge imputed agent. cannot be from an might information Lihosit conveyed have Woodmont, Daniels, See Inc. v. F.2d Artesia Service must be attrib (10th Cir.1959), provide uted to & to U.S. the basis for the (1960); S.Ct. L.Ed.2d 900 motive for War example the tort. For the dis Seavey, ren A. Handbook the Law sent’s reliance on Kirmbro v. Atlantic Rich of (1964) (“If § (9th Agency personal at 181 Cir.1989), 889 F.2d 869 field knowledge liability, is the knowl U.S. 111 S.Ct. edge agent imputed of an princi is not to the L.Ed.2d completely misplaced. is pal.”); McPartland, Sisk v. appellate The 267 Or. court in Kirnbro affirmed the cf. (1973) sanction). (discovery district plaintiffs court’s dismissal of retalia tory discharge claim. We believe the dis anyone Since Lihosit does not claim at I & general sent’s reliance proposition any knowledge hadW of his contention that that knowledge agent may the of an be im driving May further would vio- puted principal to the where knowledge such law, late state his claim for dis- is relevant to matters agent, entrusted to the charge must fail. summary judgment The misplaced. recognized exceptions The to by entered the district court is affirmed. proposition this are crucial to the decision IT IS SO ORDERED. this case. The first provides, “If the state of principal mind of a in a transac HARTZ, J., concurs. factor, tion is a by notification a third person giving agent information to an who BUSTAMANTE, J., dissents. does not principal communicate it to the does BUSTAMANTE, Judge, dissenting. operate with like effect as a similar notifi given cation principal.” to the majority Restatement The against finds the Plaintiff on (Second) (1957). § Agency 268 cmt. d supervisor the sole basis that the who carried Moreover, if knowledge “the motive and with personally out his termination was not aware which an act is done is a factor in the exis of Plaintiffs claim driving day more that [ijnformation action, given tence of a cause of would violate state regula- hours-in-service agent purpose to an for the of notice majority does tions. The charge refuses to the Answering interests were receipt of the Service’s employer I & with or notice W § any way I id. 275. adverse to & W. See assertedly given agent, I message to & W’s (the Answering Answering Artesia Service responses requests to re- The drivers’ to Service). decision, major- reaching In its subject part of the matter turn to work were adequately the nature of ity fails to address agency, Answering Service I & and agency relationship between duty give principal accu- had a clear to Service, imposes an un- Answering §§ The rate information. See id. 275. necessary public element of causal rely right to on the Answer- drivers had the policy termination cases. authority ing apparent to receive Service’s In information on behalf of I & W. a situa- GENERAL RULE OF AGENCY consciously tion in I & W has chosen which general rule is that “the The through agent an of its to receive information knowledge an principal affected selection, wholly proper to treat informa- it is upon ... it agent concerning a matter princi- given agent given as to the to the duty give principal information.” is his to Refusing pal I to do so foils & W. (Second) Agency § Restatement expectations; expecta- drivers’ reasonable given an Similarly, “notification to up it set tions created & W when given: agent principal if it is is notice message service for its own benefit. (b) (a) it; agent to an authorized to receive sense, case is differ- the Plaintiffs it; receive agent apparently an authorized to upon by majority ent from those relied (e) a trans- agent to an authorized to conduct given persons were which notice was action, respect connected with to matters receive the information or not authorized to usually given to to which notice is duty convey who had no the information majori- § agent____” id such anyone Corley v. Police else. Jackson Cf. apply general rules to ty’s refusal to these (5th Cir.1981) (court Dep’t, 639 F.2d 1296 here must flow from the benefit of Plaintiff attorney’s knowledge impute city refused agency characteristic of the relation- some law- plaintiffs had filed discrimination ship between I & W and the police plaintiffs); suit chief who fired Plain- or from the nature of the tort Service Montgomery County Pub. Featherson v. upon. tiff relies (D.Md.1990) (mem.) Sch., F.Supp. 1021 (court knowledge impute of school refused to explore agency does not employees plaintiff had district who knew described, relationship As detail. com- Act claims to school district filed EEO relationship general the agency fits within promote plain- did not mittee members who reveals that quoted rules above. The record tiff). penultimate in the The cases cited convey Answering to I & W used the Service similarly paragraph opinion are distin- nor- to its drivers outside their information guishable. example, the call working mal hours. For Woodmont, Daniels, 274 F.2d placed In Inc. v. to work was at ordering Plaintiff back (10th Cir.1959), cert. 362 U.S. to approximately p.m. It is reasonable 10:30 (1960), the Answering 4 L.Ed.2d 900 the 80 S.Ct. presume that I & W relied on fraud in execution of cause of action was for report its conversations to back on Service that at 134. The court held to a contract. Id. It is also reasonable with its drivers. impute not bad faith to the board the An- it would that the drivers relied on presume company when of the defendant report responses to directors swering to their Service that those directors there was no evidence requests report to work. It is & W’s misrep plaintiff that, intermediary, actually the relied the An- knew as an obvious However, the accurately Id. at 137. duty resentations. swering had a Service company that two court also held directions. Both convey information both negotiated contract did rely employees the right to who the drivers had the I & W and misrep the reliance and appar- know about both actual or on the Service’s (although representations convey informa- resentations authority to receive and ent by good faith originally been made that had accurately. There is no indication policy employees rep- employer’s other did not know and the decision to termi- their false), majority’s posi- colloquially, nate. Put resentations were “the information if employees] tion is: How can an retaliate it is negotiating acts of were [the personally employee’s companies aware of the moti- information and acts of the way, Thus, question they represented.” whom vation? Framed this Id. would seem itself. imposed company the court on the to answer McPartland, fraud. In Sisk 267 Or. view, however, my majority’s In treat- the defendant was unduly ment of the tort narrow. The judgment imposed found liable a default majority analyzes cause of action from “willfully” failing appear as a sanction point employer, emphasiz- of view of the deposition. attorney at a representing The ing employer’s of both the the need for been defendant had not able to find the employee’s analysis and the motivation. The deposition. defendant about the to tell her implicit carries with it the view that The trial court held that service of the notice employer must be found to have acted awith deposition attorney was sufficient. intent, purpose malevolent or evil or with a appeal, Id. at 180. the court held that a On guilty approach ignores This state of mind. party actually had to receive notice of her is, purpose of action: of the cause that deposition party before it could find that the encourage employers employees and to act in “willfully,” had acted or with volition in fail- accordance in furtherance of with and clear ing appear. Clearly, Id. at 181. both of public objectives. policy Chavez v. Manville distinguishable. these cases are Corp., Prod. 777 P.2d 371 Finally, regard to the nature of the agency, majority’s analysis I believe the has majority’s underlying assumption The that unduly

been influenced the fact that the requires the cause of action a malevolent agent independent here contractor motive or evil state of mind is reflected in the employee. and not an I find it difficult to (Second) citation to the Restatement believe that would reach the § § Agency 268 cmt. d 275 cmt. b and report- same result if the same conversations the denomination of the tort as “intentional.” ined the record had occurred between Plain- However, nothing in there is the New Mexico dispatcher. analysis tiff and an in-house foreign describing public policy or eases pattern here would do to follow the better employment sup- to at-will eases such as Kimbro Atlantic Richfield ports any the tort assertion contem- (9th Cir.1989), 889 F.2d 869 in which the plates any particular require- state of mind court liable held the under state particular, ment. is no there indication in handicap despite discrimination law the con- malice, the case evil law that intent or even personnel management tention that who personal animosity necessary are elements of made the decision terminate point important the cause of action. personally employee’s were not aware that types to make because the of tort cited as absences were from work due to medical examples in the in which Restatement a state condition for which reasonable accommoda- important of mind is include causes of action required. tion was Affirmance of dismissal fraud, prosecution. deceit and malicious of the claim ERISA retaliation was based subjective See id. The and motive knowl- evidence, solely on lack of not connected in edge person charged of the with torts such as any way imputation on the of of issue knowl- clearly these are central to the claims. edge. regard The same is true with not to the NATURE THE OF OF CAUSE ACTION “retaliatory discharge.” tort of Under this action, majority’s charge plaintiff The cause in refusal & W of a New Mexico receipt assertedly with of the information must demonstrate acted or refused to act conveyed by public policy to the in Plaintiff Ser- furtherance of a clear and vice is of the causal that he or couched terms connec- was terminated otherwise adverse (or employee’s ly between the act affected because of his acts. 108 act) 647, public a at linchpin refusal to in service of clear N.M. at 777 P.2d 375. “The

463 discharge protect it from civil the current of a cause of action for complaining by discharging Focusing the intent of the is whether ease. on the malicious man- employee employer violated a ‘clear employer rather than on the mischief caused ” public policy.’ of v. Central date Shovelin by the termination weakens the ameliorative Inc., Coop., N.M. Elec. 115 N.M. aspects tort. of the (1993). 996, Thus, New Mexi- 850 P.2d requirement special Absent a state of mind tort, emphasizes policy goals co of the not tort, why there is no reason employer. the ill-motives or bad faith of the proximate connection between the em- cause regard, In Mexico has not based its New firing ployee’s act and the cannot be inferred public policy tort on the same theoretical circumstances, totality of the includ- from the grounds as cases such as Cloutier v. Great agent specifi- Co., 915, ing imparted information to an Atlantic & Tea N.H. Pacific (1981). cally pertinent information Monge Rub- hired to receive A.2d 1140 See v. Beebe (1974) Co., 130, 114 N.H. 316 A.2d 549 require ber to fire. To more is decision (basing Hampshire’s New cause of action on analogous heightened requirement for to the theory requirement of the breach attempt- proximate cause this good dealing implicit faith and fair within the impose Tafoya Seay Corp., ed to v. Bros. contract). employment 14,998, 2, 1993), slip op. (Ct.App., Nov. No. (1995). 119 N.M. 890 P.2d 803 Rather, rev’d public New Mexico has its based majority dangerously comes close to re- grounds policy exception positive on the quiring produce evidence encouraging right creating conduct and (1) conveyed explanation of the that he: an job security limited measure of for at-will (2) directly employee’s good motive to the employees, and has followed the theoretical approach of eases such as Palmateer v. In him in person who later terminates order Co., ternational Harvester 85 Ill.2d employee’s connect the act with the relevant (1981). Vigil Ill.Dec. N.E.2d 876 See public policy put employer explicit on Arzola, 682, 688-89, 102 N.M. 699 P.2d 613 against employee will notice that action (Ct.App.1983), part overruled in on other view, my In public policy. contravene the grounds, 101 N.M. 687 P.2d 1038 reimposition of the “clear this amounts to a Corp., v. Manville Prod. Chavez convincing” evidentiary modified standard (1989). P.2d 371 rejected at See 108 N.M. Chavez. malice nor clearest statement that neither Mexico cases 777 P.2d 377. New necessary bad faith are elements of the tort showing simply require that kind of do not Distributing v. Hano is found Dixon Co. particular motion for plaintiffs, from Ill.Dec. ver Insurance 161 Ill.2d summary judgment. To do so would also N.E.2d 395 I believe the duty part of impose unprecedented on the in Dixon more in accord with discussion its explain employer approach to the tort than is New Mexico’s obligation not to duty under the law and its view. commit the tort. addition, necessary to find a it is not sense, majority goes beyond In this employer part specific intent holding Supreme Court’s even the Colorado policy. Liability could be public contravene Lorenz, Martin Marietta though good even held found (Colo.1992) (en banc), in which the court in accord faith belief that its conduct was prima facie required, part plaintiffs policy requirements. For exam- public aware, case, showing that the subject ple, I & has asserted that aware, reasonably or should have been regulations relied to the hours-in-serviee perform the em employee’s refusal to by I that belief is upon Plaintiff. assume employ ployer’s directive was based by management. I good in faith & W held belief that the directive ee’s reasonable belief, however, good-faith would That statutory policy, illegal, contrary to clear or by I from enforcement actions protect & W employee’s rights violative of the agency it should not otherwise an administrative and privileges or as a worker.1 management imputed The Colorado to would not be Kimbro, court at employer least allowed of this element as a whole. See 889 F.2d employer on the basis that the “should have at 876. employee’s been aware” of the motives. The May With the of Hickman v.

majority actual, requires subjective here Stores, Dep’t (Mo.Ct.App. 887 S.W.2d 628 knowledge by employer. 1994), authority major by the other cited Finally, majority unfairly ity distinguishable faults Plain- is in those cases providing tiff for not legal authority” “direct employee provide failed to evidence that support in argument employer that information was even aware that the em given ployee Service should engaged be treat- in the conduct that later given ed as I to & W. Plaintiff employee’s did cite to served as the basis for the claim (Second) Agency, Restatement Sec- of Corp., retaliation. Parham v. Carrier Cf. (5th Cir.1993) (no tions 268 and 275. The courts of New Mexi- 9 F.3d 383 evidence that co have been known to cite to the Restate- employee knew had filed work ment authority as the sole in support compensation of their er’s claim before termination See, e.g., (evi decisions. Byrd, made); Broome v. Talley, decision 720 F.2d at 508 677, N.M. (Ct.App.1991); 822 P.2d undisputed supervisor dence was Gonzales v. Southwest employee Sec. & Protection fired employee didn’t know that 54, Agency, previously employed by postal had been (Ct.App.1983). Application claims); of the Restate- service and had filed discrimination subject Bennett, ment this context F.Supp. reasonable Carter v. (D.D.C.1987) disagreement. (no discussion and Reliance evidence knew parties on the Restatement should not be complaint had filed EEO before lightly, particularly, terminated); dismissed so light Beckman v. Freeman United the unusual factual presented circumstances Mining Coal 123 Ill.2d 122 Ill.Dec. (1988) (no here. 527 N.E.2d 303 evidence em ployer employee’s knew of intent to file Part of the Plaintiffs and the Court’s diffi compensation worker’s claim before termi culty locating authority point on lies with nation). contrast, I this case & W pattern the fact we part face. It is in knew that Plaintiff refused to come to work novelty pattern of the fact leads the him terminated for that reason. The rely non-employment cases to issue is whether in Plaintiffs conduct was support position. its quarrel do not subordination or conduct. That the correctness of those partic eases their properly jury. issue is for the context, they ular utility but exhibit limited in analyzing the case before us. For exam distinguished Hickman ap- because the ple, requirement knowledge purposes plicable requires Missouri statute that an of a retaliation claim under Title employee prove VII of the an exclusive causal relation- Rights 1964 Civil Act ship is reasonable because filing compensation between a worker’s statutorily that claim protect Also, created to discharge. claim and the the court persons asserting rights their under that discharging direct evidence of the particular § statute. See 42 supervisor’s U.S.C. 2000e- knowledge that the claim was 3(a); Corley, 1300; Talley Mexico, 639 F.2d at filed. In New our Serv., United States Postal 720 F.2d 508 has require- disavowed the direct evidence (8th Cir.1983), 952, 104 U.S. discharge cases. See (1984). S.Ct. L.Ed.2d 541 Even in 108 N.M. at 777 P.2d at 376 instances, however, these (stating is difficult to expected “it is not to be in cases of given believe that notice to an type plaintiff au that a necessarily would thorized to receive information of that kind documentary discover or other direct evi- duty claim”). convey under support information dence in of his Reich v. Comment, imposition 1. The of this element has been round- Palpable Martin Marietta v. Lorenz: criticized, ly particular Element, Policy in a law Superfluous review article Public and the Sixth Wulfsohn, majority. cited Michael D. 70 Denv.U.L.Rev. 589 (8th Cir.1994), Shoe, Co., convey employ- duty to information from the Hoy 32 F.3d 361 on employer. ee to the supports my view in that it reasserts balance desirability allowing the fact finder to employer response decide if the acted complaint, even the absence

the OSHA knew

direct evidence whether

which “blew the whistle” to OSHA. propriety emphasized court

The Reich allowing finder to the fact determine P.2d 272 mo- ultimate issues of conduct and T.B., In the Matter of Child and evidentiary hearing rath- after a full tivation R.B., Concerning D.B. and by summary judgment. er than Respondents. IBP, Inc., Ortega Kan. P.2d T.B., Child, by CUBRA, Peter inapposite the direct Litem, ad Guardian proof to issue in the case was the standard of Petitioner-Appellant, retaliatory discharge required in cases be regard, Kansas. In that the Kansas Su- preme decided that the standard of Court Mexico, ex rel. STATE of New CHIL “by preponderance would be DREN, AND DE YOUTH FAMILIES evidence, and but the evidence must be clear PARTMENT, Respondents-Appellees. convincing in nature.” Id. at 1198. so No. 15976. rejected New doing, the Kansas court approach Mexico Court’s to the is- Appeals of New Mexico. implicitly sue articulated in thus re- jecting approach New Mexico’s to the tort Feb.

entirely. such as

It is unusual to see a termination occurring immediately incident after one

and with no direct contact between employee. It more unusual to is even non-employee agent go- as a

see a used first against liability. and then as a shield

between

It is unfortunate the uses this diffi- impose significant new pattern

cult fact plaintiffs limitations on

requirements and rely public policy on approach My suggested

at-will doctrine. to achieve the normative ends gauged

better I infor- of action. would treat

of the cause given given agent being I

mation to & W’s purposes to this I for all connected

to & W

case, jury to infer that and I would allow discharged Plaintiff because he refused

& W requirements

to violate the hours-in-serviee (1) employer’s knowledge of

based (2) knowledge that requirements,

those its already worked hours that

Plaintiff had 13/6 (3) em- day, its termination of Plaintiffs perform upon Plaintiffs refusal to

ployment explained agent requested act as choosing, agent had a employer’s

Case Details

Case Name: Lihosit v. I & W, INC.

Court Name: New Mexico Court of Appeals

Date Published: Jan 17, 1996

Citation: 913 P.2d 262

Docket Number: 16285

Court Abbreviation: N.M. Ct. App.