Bear v. Volunteers of America, Wyoming, Inc.

Page 1245

964 P.2d 1245

14 IER Cases 676

Jodie BEAR, Petitioner, v. VOLUNTEERS OF AMERICA, WYOMING, INC., and Jerry Fletcher, Respondents.

No. 97-13.

Supreme Court of Wyoming.

Sept. 14, 1998.

Michael K. Shoumaker and Rene Botten, Sheridan, for Petitioner.

H.W. Rasmussen of Badley & Rasmussen, P.C., Sheridan, for Respondents.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

GOLDEN, Justice.

Following her discharge from employment with Volunteers of America, Wyoming, Inc. (VOA), Appellant Jodie Bear (Bear) brought suit claiming the discharge breached her employment contract, violated the terms of a federal grant and violated her civil rights. VOA was granted partial summary judgment, and this Court granted Bear's petition for review of that decision.

We affirm.

ISSUES

Bear presents these issues on appeal:

Breach of Contract Claim

1. There was a genuine issue of material fact that Jodie Bear was an "at-will" employee.

A. Ms. Bear had an express contract by virtue of the employment letter sent to her by Jerry Fletcher.

B. Ms. Bear was a third-party beneficiary by virtue of the federal grant.

C. Ms. Bear had an implied contract under Volunteers of America, Wyoming, Inc.'s personnel policies.

Interference with a Contract

2. There was a genuine issue of material fact whether Jerry Fletcher, an agent of Volunteers of America, Wyoming, Inc., interfered with Ms. Bear's contract for his own advantage.

Violation of Due Process Rights

3. There was a genuine issue of material fact whether Ms. Bear had a property interest in her job that entitled her to a deprivation of property claim.

Promissory Estoppel

4. There was a genuine issue of material fact whether Volunteers of America, Wyoming, Inc. and Jerry Fletcher made specific promises to Ms. Bear upon which she detrimentally relied, and changed her position?

Breach of Good Faith and Fair Dealing

5. There was a genuine issue of material fact on whether Volunteers of America, Wyoming, Inc. and Jerry Fletcher fired Ms. Bear in retaliation for "blowing the whistle" on their misappropriation and misuse of federal grant funds and breached the Covenant of Good Faith and Fair Dealing.

Punitive Damages

6. There was a genuine issue of material fact as to whether Volunteers of America and Jerry Fletcher can be held liable for punitive damages.

VOA restates the issues to be:

1. Was Jodie Bear an "at will" employee of Volunteers of America?

2. If Jodie Bear is found to be an "at will" employee can she state a cause of action on any of the seven theories set forth in her Complaint?

FACTS

In 1994, Jerry Fletcher, Chief Operating Officer (COO) and executive director of VOA, interviewed Bear for the position of probation program director at a salary of $21,000 per year. Bear considered this salary too low and contends the two agreed that if Bear set up a probation department to provide probation services to juveniles in the municipal, county, and district court systems in Sheridan County and secured permanent funding, her salary would be raised. Fletcher sent Bear a form letter entitled "Employment Letter" which set her hiring date as December 21, 1994, named her salary and identified her employment status to be probationary for a six month period at which time she would be reclassified as a permanent employee. Referring Bear to a handbook containing the personnel policies for the organization for further information, Fletcher signed the letter as executive director. Bear was given and read the VOA Personnel Policies but states that she was not given a first page containing a disclaimer.

Federal law requires states to provide juveniles with services established under the Juvenile Justice and Delinquency Prevention Act of 1974 and provides federal grants to do so. Under Bear's direction, VOA secured a $253,000 federal grant which, beginning in October of 1995, funded probation services in Sheridan County. The grant specified that, as the designated project director, Bear could not be removed without compelling reasons and without the prior concurrence of the Office of Juvenile Justice and Delinquency Prevention (OJJDP).

Although the application for the grant set Bear's salary at $28,000 per year, Bear states that Fletcher told her that he intended to raise her to $23,000 per year and increase the salary of his wife, also a VOA employee, by $5,000. Difficulties between Bear and the Fletchers had already developed during the time before the receipt of the grant, and apportionment of the funds from the grant appears to have escalated tensions. Other incidents occurred, and Bear approached a VOA board member and stated her intent to file a grievance. According to a Board member a special board meeting was held on January 10, 1996, without the presence of Fletcher to address difficulties the Board was encountering regarding Fletcher's management of VOA. It was decided that Fletcher would be ordered not to terminate any personnel from VOA without the Board's prior approval, and one member suggested that Bear be asked not to file her grievance until this protection was in place.

In a February 9, 1996, letter to a member of VOA's board of directors, Bear stated that she learned from members of the community that she was soon to be fired and had received letters of support from judges and others she routinely worked with regarding juvenile issues. Sometime after that, Bear wrote a lengthy grievance to the VOA board describing a number of incidents involving the Fletchers which she stated illustrated that the Fletchers attempted to divert grant funds from her program to other VOA programs and to themselves in violation of the terms of the grant; misused expense money, vacation time, and compensation time; had caused the wrongful dismissal of an employee; and were withholding her mail and phone messages from her. On March 28, 1996, the board instructed Fletcher not to receive mail other than his own; to provide Bear with monthly financial statements; to have his and the program director's signatures on all expense vouchers after all questions regarding the expense were resolved; to clarify the responsibilities of Fletcher and Bear regarding the program; and take steps to improve communication between the two. The board also agreed to review four vouchers questioned by Bear.

Fletcher received a call in early August 1996 from a citizen of the community claiming that Bear was accusing Fletcher and VOA of misusing funds. He informed the Board and, at their direction, received an affidavit from the citizen describing Bear's actions. The Board authorized Fletcher to terminate Bear's employment, and on August 6, 1996, Fletcher delivered a letter of employment termination to Bear which stated that her discharge was because of these accusations, her stated intention to establish a probation service independent of VOA, and her threatening and coercing people and violating confidentiality of youth in the probation program. Fletcher had prepared a letter of resignation for Bear to sign, but she refused. She requested a hearing before the Board, which agreed to accept and review a written grievance from her but denied her request to appear before them with or without legal representation.

Bear filed suit against VOA in district court on September 4, 1996, claiming violation of freedom of speech under 42 U.S.C. § 1983; deprivation of property without due process of law under 42 U.S.C. § 1983; breach of contract; promissory estoppel; breach of the implied covenant of good faith and fair dealing; and punitive damages. Her complaint contained a claim against Fletcher for intentional interference with a contract. VOA and Fletcher moved for summary judgment and, following a hearing, the district court granted summary judgment in favor of Fletcher and VOA on all claims except for her freedom of speech claim. Bear filed a petition for writ of review with this Court, which was granted on January 28, 1997.

DISCUSSION

Standard of Review

Our review of a grant of summary judgment is the same as the district court. The movant has the burden of clearly demonstrating that there are no genuine issues as to any material fact and the movant is entitled to judgment as a matter of law. Davis v. Wyoming Medical Center, Inc., 934 P.2d 1246, 1250 (Wyo.1997). Once a prima facie showing is made, the burden shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact does exist. Id.; Clark v. Industrial Co. of Steamboat Springs, Inc., 818 P.2d 626, 628 (Wyo.1991). We examine the record from the vantage point most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may fairly be drawn from the record. Id.

Employment Contract Claims

It is now settled law in Wyoming that employment is presumed to be at will; however, that presumption can be modified by an express or an implied-in-fact agreement. Brodie v. General Chemical Corporation, 934 P.2d 1263, 1265 (Wyo.1997); Loghry v. Unicover Corporation, 927 P.2d 706, 710 (Wyo.1996). An employment handbook or personnel policies, letters of employment, performance evaluations and an employer's course of dealing may supply terms for an implied-in-fact employment contract which requires termination for cause only unless it contains a sufficient disclaimer. Loghry, 927 P.2d at 710; Lincoln v. Wackenhut Corp., 867 P.2d 701, 703 (Wyo.1994). The test is whether there has been an objective manifestation of assent to an employment contract containing a job security provision. Davis, 934 P.2d at 1249. In this case, Bear claims that the VOA personnel policies, the employment letter, her performance evaluation, and the federal grant modified her at will status to one providing that she could not be dismissed from her employment without cause.

The VOA personnel policies contained a disclaimer that Bear challenges as insufficient. Our review of it confirms that it is...