Bauer v. American Freight System, Inc., No. 15809
| Court | South Dakota Supreme Court |
| Writing for the Court | MILLER; WUEST, C.J., MORGAN, J., and ANDERSON; SABERS; ANDERSON, Circuit Judge, sitting for HENDERSON; SABERS |
| Citation | 422 N.W.2d 435,56 USLW 2680 |
| Docket Number | No. 15809 |
| Decision Date | 20 November 1987 |
| Parties | , 3 IER Cases 386 James A. BAUER, Plaintiff and Appellant, v. AMERICAN FREIGHT SYSTEM, INC., Defendant and Appellee. . Considered on Briefs |
Page 435
v.
AMERICAN FREIGHT SYSTEM, INC., Defendant and Appellee.
Decided April 20, 1988.
Wayne F. Gilbert of Banks, Johnson, Johnson, Colbath & Huffman, P.C., Rapid City, for plaintiff and appellant.
Michael M. Hickey of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee.
MILLER, Justice (on reassignment).
James Bauer (Bauer) brought this wrongful termination action against his employer, American Freight System, Inc., (American Freight) after he was terminated in November 1985. The trial court granted American Freight's summary judgment motion and Bauer appeals. We affirm.
Since Bauer began his employment with American Freight in 1977 he transferred several times and had been a sales representative and sales manager. At the time he was terminated he was in the management level position of terminal manager/sales manager at the Rapid City, South Dakota terminal. He was within eighteen months of being fully vested in American Freight's Retirement Income Security Program. Bauer did not have an individual written employment contract with American Freight.
At the time of Bauer's termination American Freight had an employee manual that set out many personnel policies. The following sections of that manual are relevant in this appeal:
Every organization must have standards for on-the-job behavior. Violation of the Company's Common sense rules of personal conduct which may result in disciplinary action or discharge include, but are not limited to, the following:
....
5. Failure to perform assigned or required work satisfactorily.
6. Insubordination.
7. Excessive absence; habitual tardiness.
You are an employee of a company performing a public service. Any misconduct which reflects discredit upon you, also reflects discredit upon the Company.
You will be penalized for tardiness through loss of pay. Tardiness, like absenteeism, detracts from your value as a member of a working team, and is a poor work habit. A record of excessive tardiness will be a factor in appraising your dependability and value to the company, and, after proper warning from your supervisor,
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can result in termination of your employment.....
The relationship of the company with its employees is firmly based on the foundation of fair play and just and equitable dealings....
In June 1985, an American Freight employee observed Bauer's company car at a local pool hall during working hours over the course of the summer and fall. This employee and a co-worker began to keep a diary of the observations, which diary disclosed that Bauer was at the pool hall during working hours approximately thirty times in an eight-week period. They reported this to Bauer's supervisors who made further inquiries and who observed Bauer's vehicle at the pool hall during working hours during times he was supposed to be making sales calls. Later, when his supervisors met with Bauer he admitted to spending an "inordinate" amount of time at the pool hall during working hours and that he was not attending to company business.
Bauer was then fired. A form used by American Freight indicated Bauer was terminated for "poor work performance." In depositions, American Freight's management personnel characterized Bauer's conduct in a variety of ways including "not working," "abusing company time," "misuse of time," "poor work performance," "stealing time from the company," and "failing to properly fulfill his job responsibilities."
Whether genuine material issues of fact arise over whether Bauer's employment at will was altered by the employee handbook and, if a contract was created, whether the contract was breached.
Summary judgment is authorized only when the movant is entitled to judgment as a matter of law because there are no genuine issues of material fact. SDCL 15-6-56(c); Trapp v. Madera Pacific, Inc., 390 N.W.2d 558, 564 (S.D.1986) citing Nemec v. Deering, 350 N.W.2d 53, 55 (S.D.1984); Caneva v. Miners and Merchants Bank, 335 N.W.2d 339, 341 (S.D.1983). The burden is on the moving party to clearly show that there is no genuine issue of material fact, and the evidence must be viewed most favorably to the nonmoving party; thus, reasonable doubts should be resolved against the moving party. The remedy is extreme and it is not intended as a substitute for a trial. Trapp, 390 N.W.2d at 562; Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). When no genuine issue of material fact exists in a case, the legal questions may be properly decided by summary judgment. Hamaker v. Kenwel-Jackson Mach., Inc., 387 N.W.2d 515 (S.D.1986). See also SDCL 15-6-56(c). Therefore, we affirm only if there are no genuine issues of material fact and the legal questions have been correctly decided. Trapp, supra. Here, the trial court was confronted with mixed questions of fact and law. Therefore, summary judgment was improper....
Bego v. Gordon, 407 N.W.2d 801, 803-4 (S.D.1987); Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987).
Although Bauer's brief sets out numerous handbook provisions, he specifically relies on three promises contained in the handbook as part of the employment contract: (1) a promise to terminate for excessive tardiness only after proper warning from a supervisor; (2) disciplinary action or discharge would take place only after violation of certain enumerated "common sense rules of personal conduct;" and (3) the relationship of the company with its employees is firmly based on the foundation of fair play and just and equitable dealings.
A proper disposition of this case requires a close analysis of our last two cases dealing with this issue, i.e. Osterkamp and Hopes, infra. In Osterkamp v. Alkota
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Mfg. Inc., 332 N.W.2d 275 (S.D.1983), we reversed a...To continue reading
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Weber v. First Federal Bank, No. 18569
...may be implied from employment handbooks. See Osterkamp v. Alkota, 332 N.W.2d 275 (S.D.1983); Bauer v. American Freight Systems, Inc., 422 N.W.2d 435 (S.D.1988); Butterfield v. Citibank of South Dakota, N.A., 437 N.W.2d 857 (S.D.1989). See generally Jane Wipf Pfeifle and Steven J. Helmers, ......
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Roberts, In re, No. 120
...1360 846 F.2d 1360 56 USLW 2680, 6 U.S.P.Q.2d 1772 In re Peter M. ROBERTS. Misc. No. 120. United States Court of Appeals, Federal Circuit. May 11, 1988. Page 1361 John B. Davidson, Louis G. Davidson & Associates, Ltd., Chicago, Ill., argued for petitioner. Also on the brief were Charles Ala......
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Rood v. General Dynamics Corp., Nos. 93416
...action or discharge, clearly reserves the right of an employer to discharge an employee at will. Bauer v. American Freight System, Inc., 422 N.W.2d 435, 438 (S.D.1988). (Emphasis in Because the policies expressed in the handbook cannot reasonably be interpreted as a promise on the part of S......
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Murphy v. Birchtree Dental, P.C., Civil Action No. 96-71358.
...to discharge an employee at will." Rood at 142, 507 N.W.2d 591 (emphasis in original), citing Bauer v. American Freight System, Inc., 422 N.W.2d 435, 438 (S.D., 1988). However, Rood's holding that such non-inclusive disciplinary provisions are consistent with at will employment does not mea......
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Weber v. First Federal Bank, No. 18569
...may be implied from employment handbooks. See Osterkamp v. Alkota, 332 N.W.2d 275 (S.D.1983); Bauer v. American Freight Systems, Inc., 422 N.W.2d 435 (S.D.1988); Butterfield v. Citibank of South Dakota, N.A., 437 N.W.2d 857 (S.D.1989). See generally Jane Wipf Pfeifle and Steven J. Helmers, ......
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Roberts, In re, No. 120
...1360 846 F.2d 1360 56 USLW 2680, 6 U.S.P.Q.2d 1772 In re Peter M. ROBERTS. Misc. No. 120. United States Court of Appeals, Federal Circuit. May 11, 1988. Page 1361 John B. Davidson, Louis G. Davidson & Associates, Ltd., Chicago, Ill., argued for petitioner. Also on the brief were Charles Ala......
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Rood v. General Dynamics Corp., Nos. 93416
...action or discharge, clearly reserves the right of an employer to discharge an employee at will. Bauer v. American Freight System, Inc., 422 N.W.2d 435, 438 (S.D.1988). (Emphasis in Because the policies expressed in the handbook cannot reasonably be interpreted as a promise on the part of S......
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Murphy v. Birchtree Dental, P.C., Civil Action No. 96-71358.
...to discharge an employee at will." Rood at 142, 507 N.W.2d 591 (emphasis in original), citing Bauer v. American Freight System, Inc., 422 N.W.2d 435, 438 (S.D., 1988). However, Rood's holding that such non-inclusive disciplinary provisions are consistent with at will employment does not mea......