Berube v. Fashion Centre, Ltd.

• Citation: 771 P.2d 1033
• Decision Date: 20 March 1989
• Docket Number: No. 20673,20673
• Parties: , 111 Lab.Cas. P 56,061, 4 IER Cases 353 Shirley BERUBE, Plaintiff and Appellant, v. FASHION CENTRE, LTD., dba Fashion Gal of Ogden, Joseph E. Torman, dba Western States Polygraph, Steven Taylor, and John and Jane Does 1-10, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1033

771 P.2d 1033

57 USLW 2627, 111 Lab.Cas. P 56,061,

4 IER Cases 353

Shirley BERUBE, Plaintiff and Appellant, v. FASHION CENTRE, LTD., dba Fashion Gal of Ogden, Joseph E Torman, dba Western States Polygraph, Steven Taylor, and John and Jane Does 1-10 Defendants and Appellees.

No. 20673.

Supreme Court of Utah.

March 20, 1989.

Rehearing Denied April 28, 1989.

George W. Preston and Joseph M. Chambers, Logan, for plaintiff and appellant.

Thomas S. Taylor, Provo and Theodore E. Kanell, Salt Lake City, for defendants and appellees.

DURHAM, Justice:

Plaintiff Shirley Berube claims on appeal that the lower court erred in denying her motion to amend her complaint to add a cause of action based on Utah Code Ann. § 34-37-16(2), in granting summary judgment in favor of defendant Western States Polygraph, and in refusing to allow the jury to evaluate plaintiff's case based upon an implied covenant of good faith and fair dealing. We reverse in part, affirm in part, and remand for trial on a theory of breach of an implied term of the employment contract.

I. FACTS

Plaintiff Shirley Berube was employed by Fashion Centre, Ltd., dba Fashion Gal (Fashion Centre), in its Ogden, Utah store beginning in April 1979. She was initially hired as a sales clerk and was eventually promoted to the position of assistant manager in 1981. Her promotions were based on demonstrated ability and job performance evaluations which ranged from good to superior. Plaintiff was uniformly pleased with her experience at Fashion Centre and anticipated a long career with the company. The accuracy of her expectations was confirmed by one of her managers, who told her that she could expect to be a store manager someday.

At or near the time she was hired by Fashion Centre, plaintiff became aware of Fashion Centre's written disciplinary action policy. This policy stated that Fashion Centre, in attempting to act equitably, would not terminate employment without prior warning except for specific reasons, including failure to pass or refusal to take a polygraph examination. In all other circumstances, Fashion Centre promised employees a warning and an opportunity to improve performance prior to termination.

Plaintiff admits that she and Fashion Centre did not agree to a specified term of employment. Indeed, she understood that her employment was of no set duration and could be terminated by either party. However, based on a number of representations and procedures, she believed that Fashion Centre would only terminate her for cause.

In the fall of 1981, an apparent inventory shortage ¹ of over 3 percent occurred in Fashion Centre's Ogden store. This was an unusually large shortage, and Fashion Centre investigated. The investigation was inconclusive, and Fashion Centre requested that all employees of the Ogden store submit to a polygraph examination. Three employees were allowed to quit rather than undergo the polygraph examination. All others, including plaintiff, agreed to participate.

Fashion Centre provided the polygraph examiner with fifteen questions upon which to base the examination. ² Defendant Western States Polygraph (Western States) administered this exam to the employees. The examiner found that plaintiff's data suggested deception when she responded negatively to the question, "Do you know for certain who has cheated or stolen anything from that Fashion Gal store?" In a post-test interview, the examiner ascertained that plaintiff had "suspicions of others--especially those who threatened to quit rather than take the polygraph exam." Thus, plaintiff's "stress" reaction was apparently based on her suspicions of others and not on a disloyal withholding of relevant or incriminating information.

Western States forwarded a copy of plaintiff's test results to Fashion Centre headquarters in St. Louis, stating that plaintiff had shown "deception" on only one of fifteen relevant questions and explaining the apparent source of the "deception" result, as revealed in the post-test interview. Even in light of this explanation, Fashion Centre told plaintiff she would be required to take a second examination. Fashion Centre did not tell her why or say that she had failed the first examination.

Although disturbed by the request, plaintiff agreed to submit to the second examination, which was administered by a different polygraph company. She showed no signs of deception and "passed" the exam. A pretest interview, however, revealed that she had, from time to time, rounded off figures of a "class count" ³ when she believed her employees had erred. This information was conveyed to Fashion Centre along with the test results.

Although the first and second polygraph examinations showed no unexplained deception on the part of plaintiff, Fashion Centre demanded that plaintiff undergo a third examination. Plaintiff was not given a reason for the third exam, and she believed, based on comments by the polygraph examiners, that she had "passed" the first two tests. She was distraught at the prospect of enduring another polygraph and by the implicit accusation that accompanied Fashion Centre's request that she submit to it. She sought advice from co-workers, friends, and relatives as to whether she should submit to the examination.

On the scheduled day of the exam, plaintiff called Fashion Centre's district manager, Jerry Brooks, and told him she was too nervous to take the exam and asked that it be postponed. Mr. Brooks informed her that Fashion Centre could require her to take any number of polygraphs and that she must call Bennett Lerner, Fashion Centre's personnel director, to seek a postponement. Plaintiff immediately called Mr. Lerner and told him she was extremely nervous and upset and could obtain a doctor's statement to that effect. In light of her condition, she asked Mr. Lerner to postpone her examination. Mr. Lerner told her she must take the exam or she would be terminated.

Plaintiff worked her usual shift that day and, at the scheduled time of the exam, called Mr. Brooks to tell him she could not take the exam. He told her to come to work the next day to sign her termination papers. When plaintiff arrived the next morning, she indicated her willingness to submit to the exam in order to retain her position. Mr. Brooks said that was impossible but she might try to reapply within two weeks. She did so, but despite repeated attempts on her part, Fashion Centre failed to respond to her inquiries.

On October 20, 1983, plaintiff filed the complaint in this action, which included causes of action for defamation, wrongful discharge, infliction of emotional distress, and breach of an employment contract. Plaintiff moved to amend her complaint in May 1984. The lower court permitted her to add Western States as a defendant but denied her request to add a cause of action based upon Utah Code Ann. § 34-37-16, entitled "Surreptitious Examinations Prohibited." Western States and Fashion Centre moved for summary judgment. The court granted Fashion Centre's motion for all causes of action except defamation and wrongful discharge. Western States' motion was granted in its entirety.

In a jury trial, Fashion Centre was found not liable to plaintiff. Plaintiff now appeals the trial court's refusal to allow a cause of action based on section 34-37-16(2), the trial court's grant of summary judgment to Western States, and the court's refusal to allow the jury to be instructed on exceptions to the employment-at-will doctrine under her cause of action for wrongful discharge.

II. PLAINTIFF'S CAUSE OF ACTION BASED ON SECTION 34-37-16

Plaintiff moved to amend her complaint to include a cause of action based on Utah Code Ann. § 34-37-16(2) (1974). The statute provides:

34-37-16. Surreptitious examinations prohibited.

It shall be a violation of this act to conduct a deception detection examination by instrument without the physical presence of the subject and through a surreptitious manner where a subject is not aware of the examination. Furthermore, it shall be unlawful for: (1) any deception detection examination to be conducted by instrument by out-of-state examiners through telephonic means to anyone in Utah or for Utah examiners to use telephonic means to determine truth or deception; or (2) refusal to submit to such examination to be the basis for denying or terminating employment.

The trial court denied plaintiff's motion to add a cause of action based on this statute to her complaint because all parties agreed that no surreptitious examination had taken place. The court premised its decision on the assumption that section 34-37-16 applies only to deception detection examinations administered without the subject's knowledge or presence.

Plaintiff argues on appeal that although section 34-37-16 was originally drafted to apply solely to surreptitious examinations, subsection (2) applies to all deception detection examinations as defined in the Deception Detection Examiners Act, Utah Code Ann. §§ 34-37-1 to -16 (1988). Plaintiff relies on statements made by Representative Dale Stratford on the Utah House of Representatives floor, who proposed the language in subsection (2), and an informal opinion issued by the Office of Legislative Research. Representative Stratford spoke on behalf of the section's adoption in very broad and ambiguous terms, which suggest that he contemplated the statute would serve to prevent termination when an employee refused to take any type of deception detection examination, including a polygraph. The Office of Legislative General Counsel, opinion No. 81-012, July 7, 1981, examined section 34-37-16(2) in context and according to standard rules of statutory construction. It concluded that subsection (2) refers to all deception detection examinations, not just voice stress examinations. This construction is necessary, it claims, to make sense of the statute. Otherwise, it would prohibit terminating an employee for refusing to...