Brower v. Holmes Transp., Inc.

• Decision Date: 01 September 1981
• Docket Number: No. 338-80,338-80
• Citation: 435 A.2d 952,140 Vt. 114
• Court: Vermont Supreme Court
• Parties: Edward N. BROWER v. HOLMES TRANSPORTATION, INC.

Page 952

435 A.2d 952

140 Vt. 114

Edward N. BROWER v. HOLMES TRANSPORTATION, INC.

No. 338-80.

Supreme Court of Vermont.

Sept. 1, 1981.

Michael F. Hanley of Black & Plante, Inc., White River Junction, for plaintiff.

Lawrence G. Slason of Salmon & Nostrand, Bellows Falls, for defendant.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

LARROW, Justice.

Plaintiff's complaint below sought damages for wrongful discharge, and an order directing defendant to honor a claimed oral employment contract. He was met with a motion for summary judgment, which the trial court granted, and he appeals that judgment.

A review of the record reveals no substantial conflict on the facts involved, so that determination of plaintiff's appeal presents only questions of law. Plaintiff had been employed as a union truck driver for over fifteen years at a Bellows Falls, Vermont, terminal. He lived in White River Junction. He had acquired significant seniority rights and other benefits, but wanted to work closer to home, so he applied for a job with Holmes Transportation, Inc. Holmes had the same union contract he had been working under. In mid-October, 1979, he was told by the Holmes terminal manager, one Barrows, that he could begin work October 29 as a "casual employee." Under the union contract, as plaintiff well knew, a casual employee fills in for vacations, "book-offs" and/or sickness. He acquires no seniority for a thirty-day period, and is employed only on a trial basis; during that period he "may be discharged without further recourse." He may, during that period, be dismissed without union protest, except when the dismissal is for the purpose of evading the agreement or discriminating against union members. No such claimed purpose is here involved.

Plaintiff gave notice to his previous employer. He began work with Holmes on October 29, a Monday. He worked four days, then was told by Barrows his services were no longer needed. Assigned as a reason was a previous back injury he had sustained, and a company policy against hiring drivers with such a history. The injury had been revealed on the application which he filed initially. The union declined to protest his discharge.

Plaintiff contends that a recovery is justified under the rules of estoppel, either in pais (equitable) or promissory. In the alternative, he suggests that the doctrine of Jones v. Keogh, 137 Vt. 562, 409 A.2d 581 (1979), is "unduly inflexible." That decision reiterated the rule of Mullaney v. C. H. Goss Co., 97 Vt. 82, 122 A. 430 (1923), that an employment contract at will may be terminated by either party, at any time, with or without cause. Again, we see no clear and compelling public policy justifying relaxation of that rule. Even Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), cited for relaxation of the rule, requires that termination of the employment be motivated by bad faith, malice or retaliation. The malice involved in Monge was indeed slight, if existent at all, as then Justice Grimes pointed out in dissent. But it was accorded at least lip service as a requirement. And, aside from a routine prayer for exemplary damages, malice is neither asserted nor shown in the instant case. Plaintiff would not only have us adopt a public policy which in Jones we considered primarily a legislative concern, but he would have us do so in the face of an express contract provision that no cause for discharge is required. We decline to do so. Plaintiff cannot prevail on his suggested alternative.

Nor can plaintiff justify recovery upon any theory of estoppel. He insinuates that he was offered permanent employment, and gave up his existing job in justified reliance upon such a promise. But he has failed, in our judgment, to raise a true factual issue on this point. Terminal manager Barrows, the other person involved in negotiations, specifically denied in his affidavit that he made any representations about hiring plaintiff on a permanent basis. Plaintiff in his deposition admitted there was no talk about a carrying over of seniority rights. And, when asked by interrogatory to state with particularity the basis of his claim of a promise of continued employment and reliance thereon, he answered merely that such promise was "implied in fact and implied in law." Under V.R.C.P. 56(e) this amounts only to reliance upon the pleadings, insufficient to meet factual denials. The promise which is the first essential element of...