Hebard v. American Tel. & Tel. Co., Inc., 86-484

• Decision Date: 25 March 1988
• Docket Number: No. 86-484,86-484
• Citation: 228 Neb. 15,421 N.W.2d 10
• Parties: , 3 IER Cases 263 Tom W. HEBARD, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC., Appellee.
• Court: Nebraska Supreme Court

Page 10

421 N.W.2d 10

228 Neb. 15, 3 IER Cases 263

Tom W. HEBARD, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC., Appellee.

No. 86-484.

Supreme Court of Nebraska.

March 25, 1988.

Syllabus by the Court

1. Demurrer: Pleadings. Pleadings are to be liberally construed, and if so construed a petition states a cause of action, a demurrer thereto is to be overruled.

2. Demurrer: Pleadings. A demurrer which challenges the sufficiency of the allegations is a general one.

3. Demurrer: Pleadings: Appeal and Error. In reviewing a ruling on a general demurrer, this court is required to

accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.

4. Employment Contracts. An employee's "at-will" status can be modified by contractual terms that may be created by employee handbooks and oral representations.

5. Employment Contracts. Oral representations may, standing alone, constitute a promise sufficient to create contractual terms which could modify the at-will status of an employee.

6. Employment Contracts: Trial. Whether specified conduct indicates a promise is a question of fact for a trier of fact.

W. Russell Bowie of Ashford, Bowie & Higgins, P.C., Omaha, for appellant.

James C. Zalewski of Erickson & Sederstrom, P.C., Lincoln, for appellee.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and BLUE, District Judge.

WHITE, Justice.

This appeal arises from an order of the district court for Douglas County sustaining the appellee's demurrer and dismissing appellant's amended petition.

Appellant's amended petition alleges that he accepted employment with Northwestern Bell Telephone Company on or about May 15, 1960. On January 1, 1984, American Telephone and Telegraph Company, Inc. (AT & T), was forced to divest itself of several of its companies, one of which was Northwestern Bell.

At the time of divestiture, appellant, Tom W. Hebard, held the position of telemarketing consultant. Appellant alleges that he was involuntarily transferred to AT & T after divestiture and held his same position for 2 weeks, after which time he was informed that the position no longer existed. He was then reclassified as an account executive. AT & T's policies, however, required that account executives become "certified" in accordance with procedures set forth in appellee's certification guide, a copy of which is attached to Hebard's amended petition. Hebard alleges that he fully complied with the certification process and submitted his required portfolio on or before the due date. After review, Hebard's portfolio was rejected by his superior, Marlin Rogers, and he was demoted to a communication servicing consultant, a position for which he had no training.

Appellant further alleges that following the rejection of his portfolio he was advised by his immediate supervisor not to appeal Rogers' decision (such right to appeal is provided for in the certification guide attached to the amended petition), because an appeal would result in termination prior to his eligible retirement date. Hebard retired under protest on July 24, 1985. A copy of his application for "involuntary retirement" is attached to his amended petition and incorporated by reference.

AT & T takes the position that Hebard's amended petition fails to state a cause of action. In reviewing this case, we are bound by the rule that pleadings are to be liberally construed, and if so construed a petition states a cause of action, a demurrer thereto is to be overruled. Slusarski v. County of Platte, 226 Neb. 889, 416 N.W.2d 213 (1987). Moreover, a demurrer which challenges the sufficiency of the allegations is a general one. Id. In our review of a ruling on a general demurrer, this court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Id. See, also, Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 416 N.W.2d 510 (1987).

In his amended petition Hebard alleges that an "oral contract of employment" existed between himself and AT & T. He states that "part of the oral contract ... was that [he] would receive an annual salary plus sales incentives in the performance of his duties...." He further alleges that his district sales manager, a superior, "assured" him "that if he complied with the certification procedures, there would be absolutely no reason [he] would not become certified and therefore eligible for incentive compensation."

Appellant alleged in the amended petition that he "fully complied with the certification process [and submitted] his completed...