Dubois v. Grand Central

• Decision Date: 13 April 1994
• Docket Number: No. 920649-CA,920649-CA
• Citation: 872 P.2d 1073
• Parties: 9 IER Cases 780 Cindy DUBOIS, Plaintiff and Appellant, v. GRAND CENTRAL, dba Fred Meyer, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 1073

872 P.2d 1073

9 IER Cases 780

Cindy DUBOIS, Plaintiff and Appellant, v. GRAND CENTRAL, dba Fred Meyer, Defendant and Appellee.

No. 920649-CA.

Court of Appeals of Utah.

April 13, 1994.

Richard N. Bigelow, argued, Salt Lake City, for appellant.

Lee C. Henning, argued, and David C. Richards, Christensen, Jensen & Powell, Salt Lake City, for appellee.

Before DAVIS, JACKSON and GARFF, ¹ JJ.

OPINION

REGNAL W. GARFF, Senior Judge:

Appellant Cindy Dubois appeals a summary judgment in favor of appellee Grand Central dba Fred Meyer. We affirm.

FACTS

Because Dubois appeals from a summary judgment, we state the facts in the light most favorable to her as the nonmoving party. Evans v. GTE Health Sys. Inc., 857 P.2d 974, 976 (Utah App.), cert. granted, 868 P.2d 95 (Utah 1993). The parties' dispute centers on Fred Meyer's dismissal of Dubois on January 4, 1991.

The parties agree that they had subsequently modified their at-will relationship via a document entitled "Fred Meyer Employee Responsibilities." However, they disagree as to the extent to which this document modified their at-will relationship. The preface on the document informed the employee, "you need to know and understand the principal reasons for the action outlined below." Under the heading, "Employee Conduct Which Will Result in Immediate Termination Without Prior Warning," is the following:

1. Dishonesty of any kind--ON OR OFF THE JOB. Some examples:

....

b. Giving or receiving unauthorized credit or price discounts on merchandise sold or purchased in our stores. Unauthorized price discounts would include "AD" prices when such are NOT available to the public.

Other listed employee conduct that would result in immediate termination without prior warning includes:

6. Insubordination, such as willfully disobeying the instructions of an authorized person-in-charge, or disrespectful conduct toward a supervisor or person-in-charge.

....

11. Other employment-related misconduct which is determined by the company to be of an equally serious nature.

While this form specified no particular process for fact-finding, it noted the following with regard to procedure: (1) the purpose of the document was to ensure that the employee would "know and understand the principal reasons" for the disciplinary action outlined therein; (2) the above behavior would result in immediate dismissal without prior warning (3) an employee could be terminated for employment-related misconduct "determined by the company to be of an equally serious nature."

Finally, the signature line of the document states that the employee "understand[s] this summary does not constitute an employment contract."

Dubois had worked for Fred Meyer on and off for nineteen years. Most recently, she worked as a manager and assistant manager of the photo-electronics department in the Fred Meyer Bountiful store.

On December 29, 1990, the Fred Meyer Bountiful store received a notice from corporate headquarters in Oregon regarding a 6800SX computer (the Computer) retailing for $999. Fred Meyer claims the notice concerned a stripped-down version of the 6800SX and refers to it as a "shell." Dubois disputes this theory. On December 31, 1990, Dubois's co-worker, Dave Swearngin, while reviewing the mail, saw the notice regarding the Computer retailing for $999. He pointed out this notice to Dubois, who mentioned she wanted to buy the Computer for this price. She checked the price on the Fred Meyer computer pricing system (the CEM system), a system used by Fred Meyer's employees to gain immediate price reference on all goods within the corporate system. Dubois noted that the CEM listed the Computer at $999.97.

On December 31, 1990, Dubois telephoned Gary Jones in Portland, Oregon to verify the price of the Computer. Jones worked as a Fred Meyer corporate buyer for the photo-electronics department. Based on her training, Dubois believed that any questions concerning Fred Meyer product prices would be resolved immediately and would be reflected in the CEM pricing system. She also believed that the prices on the CEM were the company's authorized prices. Jones told Dubois the price was wrong. He told her he would investigate the situation and would correct it.

Swearngin told Dubois that the price should be $1999. In Dubois's presence, he altered the notification to reflect the price of $1999.

Dubois did not work on January 1, 1991. When she came into work on January 2, 1991, she checked the price of the Computer on the CEM system noting that the earlier price had not been changed. Dubois told her manager, Dennis Robson, about the notice and about her conversation with Jones. Robson told Dubois to make sure the price was correct before buying or selling the Computer.

Because Jones had not called her and because the price remained unchanged on the CEM system, Dubois assumed the price was valid. That evening, she took the Computer from the back room, handed the cashier the UPC number which she had copied from the notice and which differed from the UPC number on the box. Dubois wrote a personal check for the price as listed on the CEM system, purchased the Computer, and took it home.

Dubois was not scheduled to work on January 3, 1991. On January 4, 1991, Chris Cox, an associate at another Fred Meyer store, informed Dubois that she would be fired because she purchased the Computer at an unauthorized price. Dubois immediately obtained from the CEM system a document still indicating the $999.97 price for the Computer but with a different UPC number than that on the Computer she took home.

Shortly afterward, Dubois was summoned to the security offices of the Fred Meyer Bountiful store. She met with Charles Dillier, regional head of photo-electronics. Dillier fired Dubois for taking an unauthorized discount, for being dishonest in purchasing the Computer knowing it had been mispriced, and for being insubordinate, given that a supervisor had instructed her not to sell or buy the Computer at the lower price.

The day after she was fired, Jones's letter arrived at the Bountiful store stating that the correct price of the Computer was $1999.97.

Fred Meyer managers keep in daily contact via telephone conversations regarding managerial issues such as sales volume, advertisements, borrowed merchandise and so forth. During one of these daily conversations between Robson and Jan Williams, a photo-electronics manager at another Fred Meyer store, the two discussed the fact that Dubois was able to purchase the Computer at an unauthorized discount and that Fred Meyer security personnel were to come in and speak with her that morning. According to Williams, Robson informed him that the CEM system listed the Computer at an incorrect price, that everyone in the department was aware of that fact, and that Dubois nevertheless had purchased the Computer at the unauthorized price.

Williams subsequently spoke with Chris Cox, a photo-electronics manager, and informed Cox that there had been a problem regarding the pricing of the Computer and that loss prevention personnel would speak with Dubois about the situation. Williams spoke with Robson at a later date, whereupon Robson told Williams that Dillier had dismissed Dubois.

The parties do not dispute that Fred Meyer relied on the following two allegations: (1) Jones told Dubois that "absolutely under no terms should you sell the computer at $999"; and (2) Robson told Dubois that the price of $999 was wrong and that no employee should purchase the Computer for that price. Robson made his statement to Dubois in the presence of Swearngin, who confirmed Robson's statement that no employee was to purchase the Computer for $999. However, Dubois disputes the truthfulness of these allegations.

Dubois sued claiming wrongful termination based on an implied-in-fact employment agreement. She also claimed intentional infliction of emotional distress, breach of the implied covenant of good faith and fair dealing, and slander. Fred Meyer counterclaimed for the difference between the price paid and the purchase price of the Computer.

The trial court granted summary judgment in favor of Fred Meyer. Dubois appeals.

SUMMARY JUDGMENT

We affirm a summary judgment only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c). Because summary judgment involves questions of law, we review for correctness and do not defer to the trial court. Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 306 (Utah 1992).

WHETHER COURT MADE FINDINGS

Dubois claims the court erred in making findings pursuant to the summary judgment thereby precluding summary judgment. Specifically, Dubois claims that the court's finding that Fred Meyer had a substantial basis for terminating Dubois precluded summary judgment. Our task is to determine whether this statement is a resolution of a disputed fact or whether it is a restatement of an undisputed fact.

"In reviewing a summary judgment, this court must liberally construe the evidence and all inferences that may be reasonably drawn from the evidence in favor of the party opposing the motion." Evans v. GTE Health Sys. Inc., 857 P.2d 974, 976 (Utah App.), cert. granted, 868 P.2d 95 (Utah 1993). "The trial court must not weigh evidence or assess credibility" in a summary judgment. Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, 681 P.2d 1258, 1261 (Utah 1984). In short, a court should not make findings of fact in a summary judgment other than a restatement of the undisputed facts stated in favor of the nonmoving party. See Estate Landscape v. Mountain States Tel. & Tel. Co., 793 P.2d 415, 418 n. 8 (Utah App.1990), rev'd on other grounds, 844 P.2d 322 (Utah 1992).

Here, the parties do not dispute that they had modified what began as an at-will relationship via a document entitled "Fred Meyer Employee Responsibilities." Also, Dubois does not allege that Fred Meyer fired her for a reason...