Aberle v. City of Aberdeen

• Decision Date: 05 July 2006
• Docket Number: No. 23785.,No. 23827.,23785.,23827.
• Citation: 718 N.W.2d 615,2006 SD 60
• Parties: Joel ABERLE, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipality, Defendant and Appellee.
• Court: South Dakota Supreme Court

718 N.W.2d 615

2006 SD 60

Joel ABERLE, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipality, Defendant and Appellee.

No. 23785.

No. 23827.

Supreme Court of South Dakota.

Considered on Briefs February 13, 2006.

Decided July 5, 2006.

COPYRIGHT MATERIAL OMITTED

Drew C. Johnson, Johnson Law Office, Aberdeen, South Dakota, Attorney for plaintiff and appellant.

Mark A. Anderson, Aberdeen, South Dakota, Attorney for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Joel Aberle, an employee of the City of Aberdeen, was terminated by the City and filed a wrongful termination suit. On a motion for partial summary judgment, the circuit court found Aberle was not an at-will employee as an implied employment contract existed, and that Aberle was wrongfully terminated in violation thereof. A bench trial on the issue of damages resulted in an award for past damages, and in lieu of future damages, the circuit court ordered the City to reinstate Aberle. Aberle appeals the circuit court's order for reinstatement. By notice of review, the City appeals the circuit court's ruling as to the existence of an implied employment contract and argues that it had the right to terminate Aberle as he was an at-will employee. The City also appeals the order for reinstatement. We reverse and remand concluding the City possessed a contractual right to terminate Aberle as an at-will employee.

FACTS AND PROCEDURE

[¶ 2.] In 1995, Joel Aberle (Aberle) applied to the City of Aberdeen (City) for a maintenance worker position at the Aberdeen Regional Airport. The employment application stated: "If an employment relationship is established, I understand that I have the right to terminate my employment at any time and that the City of Aberdeen has a similar right." Aberle was hired for the position in November of 1995.

[¶ 3.] During his employment, City utilized "Standard Policy & Procedure # 001," which detailed seven behaviors encouraged and expected by City and eleven behaviors that were discouraged and were labeled as "will not be tolerated." A copy of the policy acknowledging receipt of the information was signed by Aberle on December 11, 1995, and was retained in his personnel file. The document stated as its subject "Standards of Employment," with an effective date of September 18, 1989, and contained the following:

Behaviors which will be encouraged and expected:

1. Neat appearance, exemplary conduct and cooperation with all departments.

2. Demonstration of courtesy and tact when dealing with the public, other employees, visitors, and all those involved in city government and its functions.

3. Participation in In-service Training Activities and safety procedures.

4. To familiarize and adhere to administrative and department policies, procedures and regulations.

5. Provisions made to pay for debts due, so to maintain the integrity of the City and its employees.

6. Make constructive suggestions for the betterment of the City.

7. Following the proper chain of command in complaints, suggestions and grievances.

Behaviors which are discouraged and will not be tolerated:

1. Unwillingness to accept work and/or assignments.

2. Appearing for duty or working under influence of illicit drugs and/or alcohol.

3. Excessive absenteeism and/or misuse of sick time.

4. Thievery, misappropriation or negligent care of city or others['] personal property.

5. Refusal to comply with proper directions of supervisory personnel.

6. Threatening, offensive or abusive conduct (verbally or physically) towards supervisory, fellow employees and city officials, or the general public.

7. The acquisition, discussion or release of confidential material without proper authority.

8. Threaten or attempt to use personal or political influence.

9. Desertion of duty post; including sleeping while on duty.

10. Falsification or misrepresentation of information, records, or documents.

11. Willfully violat[e] any of the provisions of Civil Service or Administrative or Department rules or regulations.

I have read and understood the expected practices outlined above. While employed by the City of Aberdeen, I agree to conform in these practices. I understand that to engage in any of the listed non-acceptable behaviors will result in my being considered for disciplinary action or immediate discharge. I understand that I have the right to terminate my employment at any time and that the City has a similar right. (emphasis added).

[¶ 4.] In addition, City also used a publication titled "General Employee Policies" that included a section on disciplinary action. That section stated: "It is understood that there are offenses for which disciplinary action may be warranted, including termination."

[¶ 5.] On November 28, 2003, Aberle received a letter from City indicating that he was being terminated, but would have the opportunity to meet with several City officials to show cause why he should not be terminated. The letter stated that Aberle had been determined to have violated three of the affirmative and two of the prohibited items in Standard Policy & Procedure # 001.

[¶ 6.] Aberle met with several City officials on December 9, 2003. At the hearing, City presented no evidence and called no witnesses. Aberle objected to the procedural format of the hearing due to his inability to examine City's witnesses. He claimed he was entitled to due process protections as he was not an at-will employee. Aberle received written notice of termination on December 10, 2003, which again stated the same violations of Standard Policy & Procedure # 001 as reason for the termination.

[¶ 7.] Aberle requested a post-termination hearing, claiming he was not an at-will employee, but instead could only be terminated for cause after compliance with pre-and post-termination hearings. His request for a post-termination hearing was denied by City, which claimed the procedure was not necessary because Aberle's status as an at-will employee did not entitled him to due process protection in his termination.

[¶ 8.] At the time of his discharge, Aberle was receiving $12.19 per hour for a standard forty-hour work week, plus heath insurance benefits and a four percent retirement match, which brought his weekly wage to $606.85, or $121.37 per day. His remaining work life expectancy was seventeen years at the time of discharge for a total of 4,420 days of work life.

[¶ 9.] Aberle was unemployed without work for eighty-three days as he searched for a new job. On April 6, 2004, Aberle obtained employment with Jensen Rock and Sand, (Jensen) at a rate of $9.00 per hour, but without health or retirement benefits. His total weekly salary at Jensen was $360.00, or $72.00 per day. Aberle continued to look for work while employed with Jensen, and eventually found a position with HRS Food Service (HRS) on June 7, 2004. His hourly rate at HRS was $9.75 per hour plus $28.38 for health benefits, but no retirement match. His total weekly wage at HRS was $418.38, or $83.68 per day.

[¶ 10.] Aberle filed suit against City claiming wrongful discharge and requesting monetary damages. Aberle claimed lost wages while unemployed of $10,073.71. He also claimed lost wages for the difference between his wages while employed with Jensen and what his wages would have been if he had remained employed with City in the amount of $2,172.28. Aberle stated that he was satisfied with his position with HRS and planned to work for HRS until retirement. Therefore, he claimed the difference between his daily wage rate with HRS and his wage rate with City times his remaining life work expectancy for a total of $166,589.90.

[¶ 11.] Aberle moved for summary judgment on the issue of whether he was an at-will employee or a contract employee. Aberle argued that as a contract employee he was entitled to a post-termination hearing. As evidence of his status as a contract employee, Aberle submitted City's General Employee Policies manual and Standard Policy & Procedure # 001. Finally, Aberle argued that he was wrongfully terminated as he was not provided a post-termination hearing.

[¶ 12.] City argued Aberle was an at-will employee and therefore no post-termination hearing was required. City offered the same two documents as evidence that it did not waive its right to terminate Aberle at will under the language of the documents.

[¶ 13.] The circuit court found that an implied contract existed between City and Aberle by virtue of the General Employee Policies manual and Standard Policy & Procedure # 001, and by City acting upon these documents in its notice of termination to Aberle. By adopting the offenses stated in Standard Policy & Procedure # 001 and stating the alleged violations were the basis for the termination, the circuit court concluded that City waived the statutory presumption that Aberle was an at-will employee. The circuit court concluded that Aberle was a contract employee who could be terminated only with notice and with cause after pre-termination and post-termination hearings. Further, City's failure to provide due process type pre-termination and post-termination hearings violated Aberle's right to due process and subjected him to a wrongful termination.

[¶ 14.] Thereafter, a bench trial was scheduled on the issue of damages. City raised as a defense that Aberle failed to mitigate damages. City submitted evidence to show that several fields of employment with the same or higher wages as his position with HRS, and for which Aberle was qualified, were available in the Aberdeen area. City argued that his failure to continue to search for a position with a higher salary constituted a failure to mitigate his damages.

[¶ 15.] Aberle was able to establish that he conducted reasonable work searches throughout the course of his unemployment and while working at Jensen, up until the time he secured the position with HRS. However, the circuit court did not make a finding as to whether Aberle failed to mitigate...