Tuesday, January 31, 2012

Featured Case: Bigelow v. Bullard - Legally Fired for Racial Tolerance

The Nevada Supreme Court decision in Bigelow v. Bullard  may be used to illustrate two important concepts in a Legal Environment course. Michael Bullard was an employee of Bigelow Holding Company.  According to the court's decision:

It could be inferred from the evidence in this case that the Bigelow company had in fact adopted a rental policy of discriminating against African-Americans. It has been claimed that agents of Bigelow were instructed to use deception and subterfuge to prevent African-Americans from becoming tenants in Bigelow rentals.

Testimony of the plaintiff Bullard revealed the following incident:
Q. How were you terminated?
A. We had three black males came [sic] on the property. Carol Swenson radioed Donna Dollman [sic] on her radio — ... I told Carol that blacks had rights, too. Approximately five to ten minutes passed. Donna came into the office. Carol and Donna conversed. I don't know what they said. Donna walks up to where I'm sitting, picks up the piece of paper that I'm writing on, and she said, "What's your f--king problem?"
I said, "I don't have a problem."
She said, "I think you do." She said, "I think you're a f--king ni--er lover. Sit your God damn ass down on that f--king stool, shut your mouth, and do your f--king work."
Q. What happened next?
A. Then she said, "On second thought, get your f--king ass out of here. I don't want you working for me anymore."
Q. And what was the time span between those two statements by Mrs. Dollman [sic]?
A. Not even 30 seconds.
Q. Why did you make the statement, "Blacks have rights, too"?
A. Because I knew that they were fixing to physically assault the black males to get them off the property.

1. Wrongful Termination: 
Bullard claimed that his discharge should be deemed wrongful under the public policy exception to the employment-at-will rule. The court disagreed, overturning a jury award of compensatory and punitive damages:

In sum, then, we do not deem it to be consistent with the employment law of this state to hold that an employee's merely expressing to a fellow employee or some third person disapproval of or "objection" to company policy that is claimed to be contrary to pubic policy (as distinguished from refusal to carry out that policy) can be the predicate for a tortious discharge action. Dallman fired Bullard not for what he did (such as refusing to carry out ugly and unlawful racist policies for the company or even for "objecting" to such policies) but rather, at worst, for what, in her mind, Bullard was, namely a person she deemed to be unworthy of further employment because of an expressed sympathy for black tenants. Dallman had, under our at-will employment law, the right to fire Bullard because she did not like people like him, people who are sympathetic to African-Americans. She had the right to fire him for any reason.

2. Stare Decisis: The court considered a precedent (Western States v. Jones) that recognized a public policy exception to at-will- employment. In that case, an employee who had recently undergone surgery and returned to work with a bandaged surgical wound was fired after he refused to follow his employers direction to enter an area where hazardous fumes had been released. The court distinguished Bullard's case on the facts, since Bullard had not refused an order from his employer, but rather, had merely expressed his opinion. The court's opinion may be characterized as a choice to read the public policy exception narrowly. Had the court been inclined otherwise, the  Western States case could have been used as precedent to support the finding of a broader public policy exception. Merely having a precedent did not require the court to  find either for or against Bullard. Interpretation of law can be, ultimately, a matter of choice.

The dissenting opinion relies on persuasive precedent from California.

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