Cronk v. Intermountain Rural Elec. Ass'n, 86CA0039

• Decision Date: 21 July 1988
• Docket Number: No. 86CA0039,86CA0039
• Citation: 765 P.2d 619
• Parties: 3 IER Cases 1049 Spencer CRONK, Albert Girardi, and David Wilson, Plaintiffs-Appellants and Cross-Appellees, v. INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, a Colorado corporation; and Stanley Lewandowski, Jr., individually, Defendants-Appellees and Cross-Appellants. . IV
• Court: Colorado Court of Appeals

Page 619

765 P.2d 619

3 IER Cases 1049

Spencer CRONK, Albert Girardi, and David Wilson Plaintiffs-Appellants and Cross-Appellees, v. INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, a Colorado corporation; and Stanley Lewandowski, Jr. individually, Defendants-Appellees and Cross-Appellants.

No. 86CA0039.

Colorado Court of Appeals Div. IV.

July 21, 1988.

Rehearing Denied Sept. 8, 1988.

Certiorari Denied Nov. 28, 1988.

Feiger & Hyman, Thomas A. Feldman, Lynn D. Feiger, Denver, for plaintiffs-appellants and cross-appellees.

Howe and Porter, P.C., Edwin A. Howe, II (brief only), Hansen and Holmes, P.C., Robert W. Hansen (oral argument), Denver, Banta, Hoyt, Banta, Greene, Hannen & Everall, P.C., Richard D. Greene, Englewood, for defendants-appellees.

METZGER, Judge.

The plaintiffs, Spencer Cronk, Albert Girardi, and David Wilson, appeal the summary judgment entered in favor of defendants, Intermountain Rural Electric Association (IREA) and Stanley R. Lewandowski, Jr. (Lewandowski). The plaintiffs assert that, because disputed issues of material fact remained, the trial court erred in granting summary judgment on their claims for wrongful discharge, breach of employment contract, tortious interference with contract, tortious interference with prospective financial advantage, and outrageous conduct. Plaintiff Cronk further asserts that the court erred in granting a summary judgment on his claim of promissory estoppel because disputed issues of material fact remained. We affirm in part, reverse in part, and remand for further proceedings.

The plaintiffs were employed by IREA, then a public utility. Lewandowski was IREA's general manager. The plaintiffs were discharged at various times in 1983 and thereafter filed this action.

As a basis for their claims, the plaintiffs alleged that during the last few years of their employment with IREA, they were directed by Lewandowski to engage in illegal and irregular practices, including waiving extension fees for favored developers, requiring employees to keep an "owe" list of favors done, and awarding contracts for work without competitive bidding. Theses practices were the subject of an investigation by the Public Utilities Commission, then IREA's regulatory authority.

The plaintiffs also alleged that, during the pendency of this PUC investigation of IREA's practices, two persons were elected to IREA's Board of Directors, over the opposition of Lewandowski. As a result of the investigation and the election of these Board members, Lewandowski became preoccupied with the loyalty of IREA's employees. Because of his "preoccupation," Lewandowski hired and/or retained employees who were personally loyal to him, but who were not necessarily qualified or performing satisfactory work.

Plaintiff Cronk asserted that, because he found it increasingly difficult to support Lewandowski's policies, he sought a voluntary transfer from the position of Director of Operations to a non-management position. He explained his opposition to and disapproval of the questionable practices to his immediate supervisor, Pope, when he requested the transfer. Pope indicated that the transfer could be arranged, and promised that Cronk would be permitted to take the transfer without reprisal. Thereafter, Cronk applied for the transfer. However, on October 24, 1983, just prior to the transfer, Cronk was informed that his performance was unsatisfactory and his employment was terminated. Prior to this notice of termination, Cronk's earlier performance evaluations had been uniformly satisfactory.

Plaintiff Albert Girardi alleged that he was terminated from his position as Manager of Engineering because he testified truthfully before the PUC during the course of its investigation. Girardi also asserted that, because he was aware of Lewandowski's concerns with loyalty, and because of warnings and threats he received, he tendered his resignation, to be effective December 30, 1983. Girardi was terminated on December 1, 1983, the day after his testimony.

Plaintiff David Wilson was an engineer in the underground department, whose job was to insure that construction companies complied with contract requirements. He alleged that in 1983 he began to experience significant difficulties with the company's major contractor. After he attempted to persuade the contractor to comply with the contract requirements, the contractor complained to Lewandowski. Wilson alleged that, as a result of these complaints, and a further incident in which he was seen to have in his possession a notice of the company's annual consumer meeting, Lewandowski concluded that Wilson was "disloyal" and ordered Wilson's termination.

The plaintiffs alleged that the actions of IREA and Lewandowski constituted a breach of an implied employment contract, as established by the provisions of the employee personnel manual and supervisors' manual, distributed in 1978 and revised in later years. They also asserted that the defendants' actions constituted wrongful discharge, tortious interference with contract, tortious interference with prospective financial advantage, and outrageous conduct. Cronk, individually, alleged that the defendants were liable for wrongful discharge under a theory of promissory estoppel.

Defendants answered the complaint and filed a motion for summary judgment before significant discovery could be completed. Plaintiffs then filed an amended complaint. Thereafter, the trial court granted the defendants' motion for summary judgment in its entirety and this appeal followed.

I.

The plaintiffs first contend that the reason for their discharge was a material fact in dispute and that, therefore, the trial court erred in granting defendants' motion for summary judgment on the issue of wrongful discharge. We agree.

Summary judgment is a drastic remedy and is never warranted except on a clear showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Huydts v. Dixon, 199 Colo. 260, 606 P.2d 1303 (1980). The party opposing the motion is entitled to the benefit of all inferences which may be drawn from the facts and any doubts must be resolved against the moving party, who has the burden of demonstrating the absence of a genuine issue of fact. Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978). Summary judgment is erroneously granted if reasonable persons might reach different conclusions regarding the facts. Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972).

Employment for an indefinite duration is generally terminable at will. Lampe v. Presbyterian Medical Center, 41 Colo.App. 465, 590 P.2d 513 (1978). However, this general rule does not apply if a terminated employee shows that he was discharged for exercising a specifically enacted right or duty. Corbin v. Sinclair Marketing, Inc., 684 P.2d 265 (Colo.App.1984). To qualify for this exception, a plaintiff must prove (1) that he refused to perform an action (2) ordered by his employer (3) which would violate a specific statute (4) whose terms are more than a broad general statement of policy and (5) that his termination resulted from his refusal. Farmer v. Central Bancorporation, Inc., 761 P.2d 220 (Colo.App. 1988).

Plaintiffs alleged that the employer's policies and Lewandowski's directives required them to violate several specific public utility statutes. Plaintiffs note that § 40-7-106, C.R.S. (1984 Repl.Vol. 17) mandates that any public utility employee "who violates or fails to comply with or who procures, aids, or abets any violation by any public utility" of any public utility statute is guilty of a misdemeanor. Therefore, they argue that they could not participate in awarding preferences to developers, in contravention of § 40-3-106, C.R.S. (1984 Repl.Vol. 17), nor could Girardi refuse to testify truthfully before the PUC and, thus, violate § 40-6-103(2), C.R.S. (1984 Repl.Vol. 17). They contend in their affidavits that their resistance and expressed disapproval of these improper practices was the reason for their discharge. Defendants argued, without any supporting affidavits, that plaintiffs were discharged for cause. The trial court resolved this factual dispute and, in so doing, erred.

II.

The plaintiffs next contend that the trial court erroneously granted defendants' motion for summary judgment on their claim asserting the breach of an implied employment contract. They argue that the factual issue of the existence of an implied employment contract remained. We agree.

An employee who is hired for an indefinite period of time is an at-will employee, whose employment may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action; however, the presumption of at-will employment is not absolute. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987). An employee may seek to show that an employee handbook is enforceable as a unilateral contract of employment. Wing v. J.M.B. Property Management Corp., 714 P.2d 916 (Colo.App.1985). Thus, an employer's distribution to employees of handbooks or policy manuals, which contain specific procedures for termination of employment, when relied upon by an employee and supported by the consideration of continued service, may result in the...