Clement v. Woodstock Resort Corp.

• Decision Date: 10 October 1996
• Docket Number: No. 95-375,95-375
• Citation: 687 A.2d 886,165 Vt. 627
• Parties: David A. CLEMENT v. WOODSTOCK RESORT CORP.
• Court: Vermont Supreme Court

Page 886

687 A.2d 886

165 Vt. 627

David A. CLEMENT v. WOODSTOCK RESORT CORP.

No. 95-375.

Supreme Court of Vermont.

Oct. 10, 1996.

Before DOOLEY, MORSE and JOHNSON, JJ.

ENTRY ORDER

Defendant Woodstock Resort Corporation appeals a jury verdict awarding plaintiff David A. Clement damages for wrongful discharge. Defendant contends that (1) the court's instructions erroneously substituted its judgment for that of the jury's on whether defendant's employee handbook and policy manual created an employment contract obligating defendant to follow progressive disciplinary steps and to fire plaintiff only for cause; (2) there was insufficient evidence to support the jury's verdict; and (3) there was insufficient evidence to support the damage award. We affirm.

Plaintiff worked for defendant as a groundskeeper and mechanic for several summers before being hired as a custodian on a full-time basis. After one year on the job, plaintiff was suspended and discharged for "insubordination" stemming from a critical and profane note he allegedly sent his supervisor. Plaintiff testified that he wrote the note to himself to ventilate his frustrations and did not intend that it be read by anyone else. Defendant claimed at trial that other misconduct also played a role in plaintiff's firing, including allegations that he improperly examined confidential papers on his supervisor's desk and sexually harassed a co-worker. Although the co-worker corroborated the allegation at trial, no complaint, investigation, or warning ever issued in connection with these additional allegations of misconduct.

Plaintiff argued at trial that his discharge violated an implied agreement or promise by defendant to terminate only for cause and to follow a progressive disciplinary procedure (verbal warning, written warning, suspension, hearing, termination) based upon its employee handbook and policy manual. See Taylor v. National Life Ins. Co., 161 Vt. 457, 464, 652 A.2d 466, 471 (1993) (personnel policy manuals inconsistent with at-will relationship may serve as evidence of contract requiring progressive discipline and good cause for termination). Defendant countered that plaintiff was an employee at-will and denied that the manual suggested otherwise, noting it contained an express disclaimer of intent to create an employment contract.

The court instructed the jury on several theories of liability, including implied contract, promissory estoppel, and termination in violation of public policy. The jury returned a general verdict in favor of plaintiff and awarded him $58,024. The trial court denied defendant's subsequent motions for judgment notwithstanding the verdict, remittitur, or, in the alternative, a new trial. This appeal followed.

Defendant first contends the trial court erroneously responded to a jury question concerning the breach of contract claim. During deliberations, the court received the following question from the jury: "What is the specific question(s) that we need to answer in coming to our decision ... regarding which party prevails, i.e., was there a contract or implied contract? If so, was it breached, etc." After discussing with counsel various possible responses, the court--with counsel's approval--reread its original instructions on breach of contract. Defendant now objects to the following specific language in the charge: "but whether defendant could terminate [plaintiff's] employment at any time for any reason depends on how you decide the terms of his contract, how the terms of the contract were modified ." Defendant asserts that the instruction erroneously informed the jury that the contract had, in fact, been modified, rather than leaving that issue for the jury's determination. See Farnum v. Brattleboro Retreat, Inc., 164 Vt. 488, ----, 671 A.2d 1249, 1254 (1995) (whether conflicting provisions of employee manual create an implied contract is a jury question); Logan v. Bennington College Corp., 72 F.3d 1017, 1022 (2d Cir.1995) ("Under Vermont law, disputes concerning the agreed-upon terms and conditions of an employment contract are an issue of fact for the jury to decide.").

Defendant did not object, however, to the giving of the original instruction, and expressly concurred in the decision to reread the instruction in response to the jury question. ^* Thus, defendant has waived any claim of error on appeal. V.R.C.P. 51(b) ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); Winey v. William E. Dailey, Inc., 161 Vt. 129, 137, 636 A.2d 744, 750 (1993); Ainsworth v. Franklin County Cheese Corp., 156 Vt. 325, 332-33, 592 A.2d 871, 875 (1991). Furthermore, the instructions read as a whole clearly informed the jury of its responsibility to determine whether the at-will employment relationship had been modified. Winey, 161 Vt. at 143, 636 A.2d at 753 ("In reviewing jury instructions, we look at them as a whole, not piecemeal."). The claim of error is thus without merit.

Assuming the jury determined that the employer's handbook and policy manual modified the at-will employment...