Frigon v. Morrison-Maierle, Inc.

• Decision Date: 01 August 1988
• Docket Number: INC,No. 87-349,MORRISON-MAIERL,87-349
• Citation: 233 Mont. 113,760 P.2d 57,45 St.Rep. 1344
• Parties: Lorraine C. FRIGON, Plaintiff and Appellant, v.; William G. Enright and Larry W. Larsen, Defendants and Respondents.
• Court: Montana Supreme Court

Page 57

760 P.2d 57

233 Mont. 113

Lorraine C. FRIGON, Plaintiff and Appellant, v. MORRISON-MAIERLE, INC.; William G. Enright and Larry W Larsen, Defendants and Respondents.

No. 87-349.

Supreme Court of Montana.

Submitted on Briefs May 26, 1988.

Decided Aug. 1, 1988.

Nye & Meyer; Joan Meyer Nye, Billings, for plaintiff and appellant.

Crowley, Haughey, Hanson, Toole & Dietrich, Sharon Novak, Billings, for defendants and respondents.

McDONOUGH, Justice.

Appellant Lorraine C. Frigon appeals from the judgment and order of the District Court of the Thirteenth Judicial District, Yellowstone County, granting summary judgment in favor of respondents Morrison-Maierle, Inc., William G. Enright and Larry W. Larsen. We affirm.

Appellant frames nine issues for consideration by this Court:

1. "Is a cause of action for breach of the employer's covenant of good faith and fair dealing limited to wrongful termination, where Employer breached its own handbook requirements as to performance and related salary reviews."

2. "Does the record present genuine issues of material facts as to whether Frigon has a cause of action for wrongful discharge on a constructive discharge theory."

3. "Does the record present genuine issues of material fact sufficient to present Frigon's cause of action for defamation."

4. "Does the record present genuine issues of material fact as to whether a privilege exists to prevent a claim for defamation in this case."

5. "Does the record present genuine issues of material fact sufficient to present a cause of action for negligent infliction of emotional distress on the part of any Defendant."

6. "Does the record present genuine issues of material fact sufficient to present a cause of action for intentional infliction of emotional distress on the part of any Defendant."

7. "Is Frigon's claim for negligent or intentional infliction of emotional distress barred by the exclusivity provisions of Montana Workers Compensation Law?"

8. "Did the Court err in ordering Defendants their costs on summary judgment, where Defendants recovered no damages and did not ask for costs in their Motion for Summary Judgment."

9. "Did the Court err in awarding Defendant as a cost on summary judgment the expense of Defendants taking Frigon's deposition."

Appellant was hired by respondent Morrison-Maierle as a part-time secretary/receptionist in January of 1984, and paid $5.50 per hour. Her immediate supervisors were respondents Enright and Larsen. The "Employee's Handbook" produced by Morrison-Maierle and given to appellant soon after she was hired stated a policy of conducting employee performance reviews and annual salary reviews. These reviews were to be conducted by the employee's immediate supervisor. When she was hired, appellant was informed that she would receive her first salary review in six months. In April of 1984, appellant became a full-time employee, and in July of 1984 she received a 29cents per hour raise as part of a general annual office raise. Appellant was told by Enright that she was still due a merit raise, but he didn't have time to do a performance evaluation on her.

In October of 1984 at appellant's request, she was given a performance evaluation by respondent Larry Larsen, during which she was told that her work was satisfactory with the exception of some complaints about her filing things in the wrong place.

In November of 1984, Philip Green became branch manager of the office, and appellant's supervisor. Appellant requested an annual salary review in January of 1985, but the record does not show that such a review was ever conducted. On July 15, 1985, appellant met with Green for a performance review. During this meeting, appellant was informed that while Green had recommended she receive a merit raise, the Helena office (headquarters of Morrison-Maierle) had denied the raise on the basis of prior negative comments about appellant's job performance made to company officials in Helena by Enright and Larsen.

Appellant testified in deposition that Green had characterized the negative comments as "tremendous trifles" or "tremendous trivials". Green indicated that he would personally re-evaluate appellant's performance in three months, and if warranted, recommend a merit raise. He expressed his desire to work with appellant to resolve the problems in her working relationship with Enright and Larsen. He also said, however, that if the choice were his, he would look for another job rather than continue working with Enright and Larsen, who he said, "literally don't like the way you squeeze the toothpaste." Appellant testified that her response was that she would not let the two men bother her, to which Green said, "Good for you."

Appellant requested that the negative comments be put into writing. The two men were at first reluctant to do so, but on July 25, 1985, she received a memorandum written by Enright and Larsen containing a list of ten criticisms. Appellant prepared a written response to these criticisms, which she gave to Green on Friday, July 26. On Monday, July 29, appellant tendered her resignation, and on December 11, 1985, initiated this lawsuit, alleging breach of implied covenant of good faith and fair dealing, constructive discharge, slander and negligent or intentional infliction of emotional distress. Respondents filed a motion for summary judgment on February 25, 1987, which the District Court granted. This appeal followed.

The standard for review of the grant or denial of a summary judgment motion is the same as that used by the trial court. Dare v. Montana Petroleum Marketing Co. (Mont.1984), 687 P.2d 1015, 41 St.Rep. 1735. In order for summary judgment to issue, the movant must show there is "no genuine issue as to all facts considered material in light of the substantive principles entitling the movant to a judgment as a matter of law." Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. "If the movant has met this burden, it then shifts to the non-moving party to demonstrate a genuine issue of material fact. Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue." Gamble Robinson Co. v. Carousel Properties (Mont.1984), 688 P.2d 283, 287, 41 St.Rep. 1757, 1761.

I.

Appellant contends the respondents breached their covenant of good faith and fair dealing with her by refusing to give her performance and salary reviews when required by the Employee's Handbook, and by denying her a merit raise on the basis of negative and at least partially false comments made by her former supervisors, to which she had little or no opportunity to respond. Appellant disputes the District Court's holding that a cause of action for breach of a covenant of good faith and fair dealing did not lie because appellant voluntarily resigned. According to appellant, our decisions in Dare and Gates v. Life of Montana Insurance Co. (1982) 196 Mont. 178, 638 P.2d 1063, establish breach of the covenant of good faith and fair dealing as a tort separate from wrongful discharge, thereby obviating the need for termination in order for this cause of action to lie. Appellant further argues that our decision in Drinkwalter v. Shipton Supply Co. (Mont.1987), 732 P.2d 1335, 44 St.Rep. 318, establishes that such a covenant can be breached "on-the-job" through sexual harassment.

All of the decisions of this Court involving a covenant of good faith and fair dealing have been limited to instances of express employee termination or constructive discharge. The appellant is correct in her assertion that breach of a covenant of good faith and fair dealing is a separate tort from wrongful discharge. The latter is premised on acts by the employer in violation of public policy, while the former is broader, and does not require a public policy violation. Dare, 687 P.2d at 1019-20. However, both Dare and Gates involved employee terminations. Breach of the covenant of good faith and fair dealing was established as a tort separate from wrongful discharge, but applicable only in cases of employee termination.

Our holding in Drinkwalter also fails to support appellant's argument. Our holding in that case simply stated the plaintiff could plead established common-law causes of action in addition to distinct and different statutory causes of action such as the plaintiff's sexual discrimination claim under the state Human Rights Act. Drinkwalter, 732 P.2d at 1338. The fact remains that the covenant of good faith and fair dealing is applicable only in cases of employee termination in this state.

The record contains the letter in which appellant voluntarily resigned from her job. There was thus no express termination. On these facts, there is no genuine issue of material fact as to appellant's claim for breach of the covenant of good faith and fair dealing. As we will discuss below, appellant has failed to set forth sufficient facts to establish constructive discharge. Appellant's argument therefore amounts to "mere denial or speculation" which is insufficient under our test in Gamble to avoid summary judgment. The District Court's decision to grant summary judgment on appellant's claim of breach of the covenant of good faith and fair dealing was therefore correct, and we affirm the court on this issue.

II.

Appellant next argues that she presented genuine issues of material fact as to her claim of constructive discharge. She argues that she was forced to resign because "the employer had deliberately accepted Enright and Larsen's criticisms over the recommendations of her supervisor, contrary to its own policies." Appellant points to comments by Green and former Morrison-Maierle secretary Phyllis Swindell that they would leave rather than continuing to work with Enright and Larsen as further evidence of appellant's reasonable belief that she was being forced to resign.

Appellant's brief states the test in Montana for constructive...