Benoir v. Ethan Allen, Inc., No. 84-271

• Docket Nº: No. 84-271
• Citation: 147 Vt. 268, 514 A.2d 716
• Case Date: July 18, 1986
• Court: United States State Supreme Court of Vermont

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514 A.2d 716 147 Vt. 268 Jack E. BENOIR
v.
ETHAN ALLEN, INC. No. 84-271. Supreme Court of Vermont. July 18, 1986.

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[147 Vt. 269] Gary D. McQuesten and Brian J. Grearson of Valsangiacomo, Detora & McQuesten, Barre, for plaintiff-appellee.

Michael F. Hanley and Robert P. Gerety, Jr., of Plante, Richards, Terino & Hanley, P.C., White River Junction, for defendant-appellant.

Before [147 Vt. 268] ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

[147 Vt. 269] HILL, Justice.

This case concerns an employment contract dispute. Trial was by jury, a verdict being rendered in favor of plaintiff in the amount of $29,317.59. The superior court denied defendant's motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Defendant appeals. We affirm.

The plaintiff, Jack Benoir, worked at defendant's Randolph woodworking plant in Randolph, Vermont for fourteen years prior to the incident underlying this dispute. On February 10, 1982, while working at his stock saw station, plaintiff kicked a board off the conveyor belt. According to defendant, the board struck one of plaintiff's fellow workers, causing him to lose his balance. Defendant investigated the incident and concluded that plaintiff had engaged "in horseplay that endangered the life or limb of another employee" in violation of company rules and regulations contained in the employee's handbook. On February 22, 1982, defendant discharged plaintiff from its employ.

The jury found that plaintiff was discharged in violation of the terms and conditions of his employment contract with defendant providing for "permanent" employment upon completion of a three-month probationary period. Defendant argues on appeal that plaintiff was an employee at will who could be discharged at [147 Vt. 270] any time and for any reason. The company further contends that the trial court erroneously charged the jury on this issue, and that plaintiff failed to introduce competent evidence on the issue of damages.

"It is the law in this jurisdiction that 'an employment contract for an indefinite term is an "at will" agreement, terminable at any time, for any reason or for none at all.' " Larose v. Agway, Inc., 147 Vt. 1, 3, 508 A.2d 1364, 1365-66 (1986) (quoting Sherman v. Rutland Hospital, Inc., 146 Vt. 204, 207, 500 A.2d 230, 232 (1985)). However, while the term "permanent," when used in an employment contract with reference to a term of employment, normally

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means nothing more than indefinite employment, see, e.g., Russell & Axon v. Handshoe, 176 So.2d 909, 915 (Fla.Dist.Ct.App.1965), a contract for "permanent" employment will not be considered terminable at will "if the employer has, by express language or clear implication, foreclosed his right to terminate except for cause." Drzewiecki v. H & R Block, Inc., 24 Cal.App.3d 695, 703, 101 Cal.Rptr. 169, 174 (1972); see also Handshoe, supra, 176 So.2d at 915 (citing Annot., 35 A.L.R. 1432 (1925)).

"In determining whether there exists an implied-in-fact promise for some form of continued employment courts have considered a variety of factors ... includ[ing] the personnel policies or practices of the employer...." Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 327, 171 Cal.Rptr. 917, 925 (1981); see, e.g., Greene v. Howard University, 412 F.2d 1128, 1133-35 (D.C.Cir.1969); Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 451-53, 168 Cal.Rptr. 722, 727-28 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622, 629-30 (Minn.1983). Defendant's policies and practices regarding termination were set out in an employee handbook. ¹ The jury found that this handbook constituted a part of a binding and enforceable contract between the [147 Vt. 271] parties. ²...