{ "id": 708685, "name": "Walter SANCHEZ, Plaintiff-Appellant, v. THE NEW MEXICAN, a Gannett Company, Inc., a New York corporation, Defendant-Appellee", "name_abbreviation": "Sanchez v. New Mexican", "decision_date": "1987-07-15", "docket_number": "No. 16362", "first_page": "76", "last_page": "80", "citations": [ { "type": "official", "cite": "106 N.M. 76" }, { "type": "parallel", "cite": "738 P.2d 1321" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "671 P.2d 1150", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 439", "category": "reporters:state", "reporter": "N.M.", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 414", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588611 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0414-01" ] }, { "cite": "93 N.M. 781", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568709 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/93/0781-01" ] }, { "cite": "754 F.2d 884", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 287689 ], "pin_cites": [ { "page": "886" } ], "opinion_index": 0, "case_paths": [ "/f2d/754/0884-01" ] }, { "cite": "104 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594919 ], "weight": 4, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0470-01" ] }, { "cite": "105 N.M. 151", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598971 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/105/0151-01" ] }, { "cite": "104 N.M. 698", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595019 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/104/0698-01" ] }, { "cite": "102 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580114 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0682-01" ] }, { "cite": "101 N.M. 687", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586479 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/101/0687-01" ] } ], "analysis": { "cardinality": 635, "char_count": 11829, "ocr_confidence": 0.796, "pagerank": { "raw": 1.5883730509778747e-07, "percentile": 0.6816138701522753 }, "sha256": "4e784ca85ce1e68cbde0049745c2bc8a0decaa319f3592c8b282087bb83061b6", "simhash": "1:79e43a4383c0d512", "word_count": 1909 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SCARBOROUGH, C.J. and WALTERS, J., concur." ], "parties": [ "Walter SANCHEZ, Plaintiff-Appellant, v. THE NEW MEXICAN, a Gannett Company, Inc., a New York corporation, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSOSA, Senior Justice.\nPlaintiff-Appellant Walter Sanchez (Sanchez) filed suit against Defendant-Appellee The New Mexican (Employer), a corporation which publishes a daily newspaper in Santa Fe. In a five-count complaint, Sanchez alleged that, in discharging him from his job, his Employer (1) breached an implied contract of employment set forth in the Employer\u2019s \u201cEmployee Policy Handbook\u201d; (2) breached a covenant of good faith and fair dealing; (3) acted in retaliation for his having uncovered the Employer\u2019s illegal non-payment of gross receipts taxes; (4) acted negligently in not warning him of his impending discharge; and (5) intentionally or recklessly inflicted upon him emotional distress.\nThe trial court granted the Employer\u2019s motion for summary judgment as to count 5 of the complaint; granted the Employer\u2019s motion to dismiss as to counts 2 and 4; and granted the Employer\u2019s motion for directed verdict as to count 1. As to count 3, the jury returned a verdict in favor of the Employer. We affirm both the judgment of the court on the various motions and the verdict reached by the jury. Sanchez appeals, asserting seven errors, only four of which we feel merit discussion.\nFACTS:\nSanchez was hired on October 20, 1982 and discharged on December 7, 1983. Initially his job title was \u201cChief Accountant,\u201d but by the time of his discharge his job title had been changed to \u201cBookkeeper-Accountant,\u201d a demotion. His supervisor demoted him partially because he had neglected to account for a week\u2019s supply of newsprint. According to both Sanchez and his Employer, the reason given for his eventual discharge was \u201csubstandard work.\u201d In his complaint, however, Sanchez contends that the stated reason was merely a pretense, and that he was actually fired in retaliation for his bringing to light his Employer\u2019s nonpayment of gross receipts taxes for its national advertising accounts.\nThe testimony as to this issue is divided. Sanchez testified that it was he who discovered that his Employer had not been paying the requisite taxes and that he was unable to persuade his supervisors to make the payments, but his immediate predecessor in the position of chief accountant testified that she had trained Sanchez in the method to be used in paying the taxes. In addition, the Employer\u2019s comptroller, Sanchez\u2019s immediate supervisor, testified that she asked him to take care of the payment of taxes, as she had just moved to Santa Fe from out of state and was not informed as to New Mexico tax requirements.\nAfter Sanchez was fired, but before he filed his complaint, the Employer requested an audit by the New Mexico Taxation and Revenue Department. According to the Employer\u2019s comptroller, the audit showed that the amounts required to be paid by the Employer had indeed been paid \u2014 both before and during the time that Sanchez was employed. Sanchez\u2019s attorney challenged the comptroller\u2019s testimony on this point, contending that the Employer\u2019s records could be construed to show that the Employer was in arrears on its taxes.\nBoth the comptroller who was employed during Sanchez\u2019s tenure, and the comptroller who succeeded her, testified that the reason why the Employer did not bill some of its national advertising clients for sales tax, and thus the reason why an anomaly appeared in the Employer\u2019s own gross receipts tax records, was that the Employer billed preferred clients for advertising without identifying the accompanying tax as a tax. In other words, the Employer contends that it billed preferred customers for both sales and sales tax without distinguishing between the two.\nSanchez also contends that the Employer was bound by the language contained in the employees\u2019 handbook, which he contends constituted an implied contract between him and his Employer. The Employer\u2019s personnel director, however, testified that the handbook was merely a \u201csuggested guideline\u201d by which the Employer measured employees\u2019 conduct, and that the \u201cdiscretion of the supervisor\u201d in every case controlled the material printed in the handbook. Sanchez argues to the contrary by quoting language in the handbook which states that the Employer would attempt to give an employee who is in danger of discharge \u201crepeated warnings,\u201d and that the Employer would fire an employee without having given such warnings only \u201cfor cause.\u201d One of these \u201cfor cause\u201d reasons was unreported absences from work. Sanchez admittedly missed two days of work without reporting in to his supervisor.\nAt trial Sanchez admitted that he told his supervisor when she fired him that he \u201cwas going to get her\u201d for not having paid the taxes at issue, by which he meant that he was going to report the Employer to the authorities. He also admitted that a document which he alleged to be a key element substantiating his complaints of retaliatory discharge and intentional or reckless infliction of emotional distress (a confidential memo written by the comptroller recommending that his position be terminated for budgetary reasons), was not left lying about for all to see, but was instead uncovered by his own efforts in rummaging through papers on top of the comptroller\u2019s desk during her absence.\nSanchez further admitted that he possessed no signed, written employment contract other than the \u201cimplied contract\u201d contained in the handbook, and that the Employer had a right to discharge him for his unreported absences. Further, he testified that after he had complained about the Employer\u2019s non-payment of gross receipts taxes, he had nonetheless received a standard increase in salary. Sanchez raises several issues on appeal which we address in descending order of importance.\nI. THE \u201cRETALIATORY DISCHARGE\u201d ISSUE\nIn order to succeed on this issue, Sanchez would have to come within the confines of the rule established in Vigil v. Arzola, rev\u2019d on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984), 102 N.M. 682, 699 P.2d 613 (Ct.App.1983), which (1) followed the established rule that unless there is an explicit contract of employment stating otherwise, employment is terminable \u201cat will,\u201d and which (2) held that the only exception to this established rule is a situation in which an employee\u2019s discharge results from the employer\u2019s violation of a clear public policy. We adhered to this rule both in Francis v. Memorial General Hospital, 104 N.M. 698, 726 P.2d 852 (1986), and in Boudar v. EG & G, Inc., 105 N.M. 151, 730 P.2d 454 (1986). In Maxwell v. Ross Hyden Motors, Inc., 104 N.M. 470, 722 P.2d 1192 (Ct.App.1986), the court of appeals clarified its holding in Vigil by stating, \u201cVigil did not sound the death knell of the at-will rule. To the contrary, it simply adopted a limited \u2018public policy\u2019 exception to the rule.\u201d Id. at 473, 722 P.2d 1192. Elsewhere the rule established in Vigil is described as \u201cthe current trend in this country.\u201d Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 886 (10th Cir.1985). In our opinion both the trial court and the jury possessed sufficient credible evidence to justify the Employer\u2019s claim that Sanchez\u2019s discharge had nothing to do with his complaints about the supposed non-payment of gross receipts taxes. Therefore we need not decide whether an employee\u2019s discharge for \u201cblowing the whistle\u201d on an employer for not making tax payments constitutes the tort of retaliatory discharge according to the rule established in Vigil. We will continue to define on a case-by-case basis violations of public policy in retaliatory discharge suits. Here we simply hold that Sanchez\u2019s discharge was not as a matter of law retaliatory, but could have been based, as the jury apparently decided, on grounds which authorized his Employer to terminate him \u201cat will.\u201d\nII.THE \u201cIMPLIED CONTRACT\u201d ISSUE\nSanchez asserts that the employee handbook constituted an implied contract between him and his Employer. In Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980), we recognized that an employee handbook could indeed constitute an implied contract of employment. Here, however, we are not dealing, as in Forrester, with an employee who has passed from a probationary to a permanent status after adhering to certain specific requirements set forth in the handbook in question. Further, in Forrester we were concerned with the issue of whether the procedural requirements for terminating an employee as spelled out in the handbook were followed.\nHere we are concerned with the issue of whether the employee handbook is itself the contract, i.e., the written agreement of employment between Sanchez and his Employer. In our opinion, the evidence supports the Employer\u2019s contention that the handbook lacked specific contractual terms which might evidence the intent to form a contract. The language is of a non-promissory nature and merely a declaration of defendant\u2019s general approach to the subject matter discussed. Accordingly, the trial court was justified in granting the employer\u2019s motion for directed verdict.\nIII. THE \u201cBREACH OF GOOD FAITH\u201d ISSUE\nWe will allow Sanchez\u2019s brief to speak for itself on this issue. The brief states that the duty to act in good faith and to use fair dealing in a contractual setting is \u201cimposed by law rather than arising from the terms of the contract itself.\u201d This argument, however, ignores that there is no contract of employment upon which the law can impose the stated duty to exercise good faith and fair dealing. Sanchez was an \u201cat will\u201d employee who could be dismissed for any or no reason. Certainly the reason for his discharge was far less malevolent than that given by the employer in Zuniga v. Sears, Roebuck & Co., 100 N.M. 414, 671 P.2d 662 (Ct.App.1983), cert. denied 100 N.M. 439, 671 P.2d 1150 (1983), where an employee was fired for stealing a television set, and not rehired after the accusation of theft was shown to be erroneous. Yet, in that case the court of appeals upheld the employee\u2019s discharge because he lacked a contract for a specific term. As in Zuniga, we continue to follow the \u201cemployment-at-will\u201d rule here.\nIV. THE \u201cEMOTIONAL DISTRESS\u201d ISSUE\nThe record fails to disclose facts sufficient to support Sanchez's claim that the employer inflicted emotional distress upon him, either intentionally or recklessly. And since the facts uncovered by pretrial discovery and argued at the hearing on motion for summary judgment were substantiated by the evidence at trial, we conclude that the trial court exercised sound discretion in granting the employer\u2019s motion for summary judgment. SCRA 1986, 1-056(C) requires that there be no genuine issue as to any material fact related to the allegation of emotional distress, and that was in fact the case here.\nSanchez raises several other issues on appeal, none of which is meritorious. Accordingly, we find that there was no contract of employment existing between Sanchez and his Employer; that the Employer breached neither a duty of good faith nor of fair dealing; that Sanchez\u2019s discharge was not retaliatory, and that his contention that the Employer intentionally or recklessly inflicted emotional distress upon him is unfounded. The judgment of the trial court as to all five counts of the complaint is affirmed.\nSCARBOROUGH, C.J. and WALTERS, J., concur.\n. In his brief on appeal Sanchez\u2019s attorney attached a copy of a case which he asserted as support for his client\u2019s position as well as a copy of the employees\u2019 handbook in the Forrester case, even though neither of these attachments was a part of the record. We discourage such a practice.", "type": "majority", "author": "SOSA, Senior Justice." } ], "attorneys": [ "Eric Isbell-Sirotkin, Albuquerque, for plaintiff-appellant.", "Jones, Gallegos, Snead & Wertheim, John Wentworth, Santa Fe, for defendantappellee." ], "corrections": "", "head_matter": "738 P.2d 1321\nWalter SANCHEZ, Plaintiff-Appellant, v. THE NEW MEXICAN, a Gannett Company, Inc., a New York corporation, Defendant-Appellee.\nNo. 16362.\nSupreme Court of New Mexico.\nJuly 15, 1987.\nEric Isbell-Sirotkin, Albuquerque, for plaintiff-appellant.\nJones, Gallegos, Snead & Wertheim, John Wentworth, Santa Fe, for defendantappellee." }, "file_name": "0076-01", "first_page_order": 116, "last_page_order": 120 }