Gladden v. Arkansas Children's Hosp.

• Decision Date: 04 May 1987
• Docket Number: Nos. 86-199,86-201,s. 86-199
• 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.
• Court: Arkansas Supreme Court

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.

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 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 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 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 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 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 and punitive damages of $50,000. The defendants moved for partial summary judgment, which was granted, and Mrs. Gladden amended her complaint to allege that personnel regulations of the hospital constituted a contract of employment between the parties which was breached by the defendants. The tort claim was not pursued. The defendants again moved for summary judgment and the motion was granted.

On appeal Ms. Gladden proposes that the employment at will doctrine be modified "to allow a written contract of employment to be enforced which limits the right of an employer to discharge an employee, in the absence of a definite term of employment."

Discussion

It might be well to note at the outset that the claim of wrongful discharge in the context of these cases is readily distinguishable from M.B.M. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1981) where, without deciding the issue, we conceded merit in the argument that where an employee is discharged in violation of a well established public policy the law recognizes a cause of action. Counce, p. 273, 596 S.W.2d 681.

In Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982) dictum of the opinion stated that the employment at will doctrine is deeply embedded in our case law: See St. Louis I.M and S.R. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897); Petty v. Misouri Pacific Railway Company, 205 Ark. 990, 167 S.W.2d 895 (1943); Tinnon v. Missouri Pacific Railroad Co., 282 F.2d 773 (1960); Smithey v. St. Louis Southwestern Railway Co., 237 F.2d 637 (1956), and Roberts v. Thompson, 107 F.Supp. 775 (E.D.Ark.1952). And Griffin further stated that the doctrine recognizes the right of either party to terminate at will even where the conditions of employment are that an employee would not be discharged except for good cause, quoting from St. Louis I.M. and S.R. Company v. Matthews, supra.

In cases following Erickson v. Griffin, we expressed a willingness to reexamine the principle in the light of more recent trends in the law. See Gauldin v. Emerson Electric Co. and Jackson v. Kinark Corp., supra. But we have said as well that the review will be based on employment for a particular length of time or where an employee is discharged arbitrarily or in bad faith in violation of an agreement to discharge only for cause. Bryant v. Southern Screw Machine Products Company, Inc., 288 Ark. 601, 707 S.W.2d 321 (1986). Gaulden v. Emerson Electric Co., supra.

Neither appellant claims she was employed for a definite length of time. Both contend the personnel manuals of the hospitals limit the right to discharge except for cause. We disagree. While the manuals contain provisions describing methods for dismissal under certain circumstances and specifying kinds of conduct that could result in summary dismissal, they do not contain provisions that an employee will not be discharged...