Gladden v. Arkansas Children's Hosp., Nos. 86-199

• Court: Supreme Court of Arkansas
• Writing for the Court: HAYS; PURTLE; PURTLE
• Citation: 292 Ark. 130,728 S.W.2d 501
• Parties: , 2 IER Cases 560 Gail GLADDEN, Appellant, v. ARKANSAS CHILDREN'S HOSPITAL, Cindy Van Winkle and Larry Woodard, Appellees. Loretta SAMPLES, Appellant, v. SALINE MEMORIAL HOSPITAL, Appellee.
• Docket Number: Nos. 86-199,86-201
• Decision Date: 04 May 1987

Page 501

728 S.W.2d 501 292 Ark. 130, 2 IER Cases 560 Gail GLADDEN, Appellant,
v.
ARKANSAS CHILDREN'S HOSPITAL, Cindy Van Winkle and Larry
Woodard, Appellees.
Loretta SAMPLES, Appellant,
v.
SALINE MEMORIAL HOSPITAL, Appellee. Nos. 86-199, 86-201. Supreme Court of Arkansas. May 4, 1987.

Page 502

[292 Ark. 131] Jim O'Hara, N. Little Rock, for Gladden.

Robert F. Alsobrook, Benton, for Samples.

Friday, Eldredge & Clark by James W. Moore and Michael S. Moore, Little Rock, for Children's Hosp.

Joe Kelley Hardin, Benton, for Saline Memorial Hosp.

HAYS, Justice.

These cases, Gladden v. Arkansas [292 Ark. 132] Children's Hospital, et al, and Samples v. Saline Memorial Hospital are certified to us by the Court of Appeals under Rule 29(4)(b) and are consolidated for purposes of appeal. We are again asked to modify the employment at will doctrine. Neither case squarely presents the issue which we said in Gauldin v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92 (1984) and Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984) we would reexamine in light of current law, because in neither case was the employment for a definite term nor was there an express agreement that an employee would be dismissed only for cause. However, we take this opportunity to more fully explain our position with respect to the at will rule.

Samples v. Saline Memorial Hospital

Appellant Loretta Samples began working as a nurse at Saline Memorial Hospital

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in 1981. She was given a hospital manual dealing with a wide variety of administrative and personnel policies. A provision on probation stated that "no rights are guaranteed" during a six month probationary period and a provision on termination stated, "any of the following items constitute grounds for termination." The list contains thirteen grounds ranging from public drunkenness to insubordination, including "chronic tardiness and/or absenteeism." Two written warnings and two suspensions without pay were required before termination for absenteeism.

On a Monday afternoon in April, 1985 Ms. Samples was called to the office of the hospital controller, Ron Morris, where she was handed a check and told she was discharged for absenteeism. Ms. Samples protested the allegation and went to the office of the hospital administrator, Mr. Busby. Busby told her he would talk with Morris, that she should go home and wait for him to call. Busby called that afternoon to say she was reinstated, subject to a ninety day probation, and to report to work the next morning. On Tuesday morning Ms. Samples called Morris to say she was not well enough to come in. She described his attitude as entirely cordial and he told her the severance check would be voided. On Wednesday Ms. Samples spent most of the day trying to meet with Busby and Morris. When she finally saw Morris he told her Busby had overturned his decision and decided to reinstate her on ninety days probation. When Ms. Samples again [292 Ark. 133] denied being absent Morris referred her to Busby and she and Busby resumed the discussion with no understanding being reached. Ms. Samples persisted in her efforts to see Mr. Busby and on Friday she was told she could "either quit, or be fired or be on ninety days probation." When Ms. Samples refused to accept probation Mr. Busby told her she left him no choice but to terminate her.

Ms. Samples filed suit against the hospital for $50,000 for past and future wages, alleging that her discharge was arbitrary and in bad faith and constituted a breach of her employment contract. At the close of the plaintiff's proof, Saline Memorial Hospital moved for a directed verdict which the trial court granted. Ms. Samples has appealed. We affirm the trial court.

In the foregoing statement of facts we have observed the rule that on appeal from a directed verdict we view the facts most favorably to the appellant. Goodnight v. Richardson, 286 Ark. 38, 688 S.W.2d 941 (1985); Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984).

On appeal Ms. Samples contends the personnel policy manual of the hospital constitutes a contract. She relies on Toussaint v. Blue Cross and Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980), Pine River Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, 33 A.L.R. 4th 110 (1982), Yartzoff v. Democrat Herald Publishing Company, 281 Or. 651, 576 P.2d 356 (1978), Wagner v. Sperry Univac, 458 F.Supp. 505 (E.D. of Pa.1978) and Osterkamp v. Arkhola Mfg., Inc., 332 N.W.2d 275 (S.C.1983). But in those cases the discharge was in direct violation of an express provision of a personnel manual. In Toussaint the manual announced a policy of termination "for just cause only." In Weiner, "for just and sufficient cause only." In Osterkamp, "not without just cause." In Mettille discharge was subject to review by the Executive Officer. In Yartzoff, the manual assured the employee of written warning of unsatisfactory job performance and two temporary suspensions before discharge. In Wagner, a reduction in force was to be governed by senority in determining who would be laid-off and Wagner's discharge violated that provision.

We need not decide whether the hospital's manual constituted an employment contract, as we find no proof to [292 Ark. 134] support the allegation the manual was breached. Ms. Samples submits the hospital promised to discharge her only for one of the thirteen reasons listed in the section on termination. We find no such provision. The manual simply lists conduct which could result in termination, with no implications

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that those infractions alone constitute cause for discharge. That does not meet what we have said we were willing to review. See Bryant v. Southern Screw Machine Products Company, Inc., 288 Ark. 602, 707 S.W.2d 321 (1986).

Ms. Samples also contends the hospital breached provisions of the manual guaranteeing certain steps would be followed before discharge for absenteeism. That might be said of the attempted discharge by Morris, but that was promptly rescinded by Busby and Ms. Samples was reinstated subject only to a ninety-day probationary period. The manual gave the hospital the power to place an employee on disciplinary probation at any time. Moreover, the manual also provided that an employee who is promoted or transferred to another position must complete a six-month probation and Ms. Samples had been promoted from D.R.G. Code to Utilization Review Coordinator five months earlier. In sum, there was no proof that the hospital failed to substantially comply with the provisions of the manual in placing Ms. Samples on probation. See Erickson v. Griffin, 277 Ark. 433, 642 S.W.2d 308 (1982).

Gladden v. Arkansas Children's Hospital

After some 18 month's employment, appellant Gail Gladden was terminated in August, 1984 by Arkansas Children's Hospital. Initially Mrs. Gladden filed suit based on the tort of outrage against the hospital and against her supervisors, Cindy Van Winkle and Larry Woodard, alleging nightmares, crying spells, anxiety and depression resulting from wrongful discharge. She asked for compensatory damages of $50,000...