Hoflund v. Airport Golf Club

• Decision Date: 10 February 2005
• Docket Number: No. 04-12,04-12
• Citation: 105 P.3d 1079,2005 WY 17
• Parties: PENNY HOFLUND, Appellant (Plaintiff), v. AIRPORT GOLF CLUB, a Wyoming non-profit corporation, and AMOS MIDGELY, Appellees (Defendant).
• Court: Wyoming Supreme Court

2005 WY 17

105 P.3d 1079

PENNY HOFLUND, Appellant (Plaintiff), v. AIRPORT GOLF CLUB, a Wyoming non-profit corporation, and AMOS MIDGELY, Appellees (Defendant).

No. 04-12

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

February 10, 2005

Representing Appellant: Loretta R. Green and Curtis B. Buchhammer of Buchhammer & Kehl, PC, Cheyenne, WY. Argument by Ms. Green.

Representing Appellees: Gay Woodhouse and Lori L. Brand of Gay Woodhouse Law Office, PC, Cheyenne, WY. Argument by Ms. Woodhouse.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J.

STEBNER, District Judge, Retired.

[¶1] This is an appeal from summary judgment granted against appellant Penny Hoflund and in favor of appellee Airport Golf Club (AGC). In her complaint against AGC, Hoflund alleged causes of action for breach of contract, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, and defamation.¹ We affirm.

ISSUES

[¶2] Hoflund phrases the issues on appeal as:

I. [Hoflund] properly asserted a claim for retaliatory discharge in violation of public policy within the trial court.

a. The Wyoming Fair Employment Practices Act of 1965, Wyo. Stat. § 27-9-101 et seq. does not provide a remedy for sexual harassment.

b. Sexual harassment violates theories of public policy and [Hoflund] had no other remedy than civil litigation.

c. A material question of fact exists as to [Hoflund's] allegation of retaliatory discharge.

II. The covenant of good faith and fair dealing is breached when a special relationship exists between an employer and employee and the employee is discharged to avoid compliance with a specified duty of the employer.

III. Intentional infliction of emotional distress is available to an employee where a hostile work environment has been fostered if that employee can demonstrate severe emotional distress due to the employment relationship itself.

AGC states the issues on appeal as:

I. [Hoflund] did not properly assert a claim for retaliatory discharge in her complaint and raises related issues for the first time on appeal.

A. The Wyoming Fair Employment Practices Act of 1965, Wyo. Stat. § 27-9-101 et seq. provides an adequate remedy for sexual discrimination as held in Allen v. Safeway Stores, 699 P.2d 277 (Wyo. 1985) precluding an action for retaliatory discharge.

B. [Hoflund] failed to exhaust the administrative remedies promulgated by the Wyoming Department of Labor pursuant to Wyo. Stat. § 27-9-104(a)(ii) thus barring any claim of retaliatory discharge.

II. As a matter of law, no "special relationship of trust and reliance" existed between [Hoflund] and [AGC] sufficient to support a claim of violation of the covenant of good faith and fair dealing.

A. [Hoflund] provided no separate consideration to her employer [AGC] to establish the necessary special relationship of trust and reliance.

B. [Hoflund's] at-will employment status was not modified by [AGC's] voluntary adoption of a sexual harassment policy.

III. [AGC's] lawful termination of [Hoflund] cannot support a claim of intentional infliction of emotional distress against it as a matter of law, and [Hoflund] presented no other facts to support such a claim to the District Court.

FACTS

[¶3] AGC is a nonprofit corporation that operates a private membership club including a restaurant and bar at the clubhouse of the Cheyenne Airport Municipal Golf Course. Hoflund began employment with AGC as a bartender in approximately 1993. Between 1996 and 1998 Hoflund acted as manager for AGC. In 1998, Hoflund returned to the position of bartender at her request until March of 2001. Hoflund then left the employ of AGC until June of 2001 when she was rehired by AGC serving in the capacity as manager until March of 2002. Thereafter, Hoflund again left the employ of AGC to take another job, but filled in at the club when requested to do so. Hoflund was once more rehired full time by AGC in the position of bartender in June of 2002.

[¶4] When Hoflund returned to employment with AGC in June of 2002, Midgely was employed as a cook. Hoflund knew Midgely prior to his employment with AGC because Midgely had been an active member of the club for several years. While Midgely was a patron and Hoflund's co-worker at AGC, Hoflund and Midgely engaged in banter and verbal sparring.

[¶5] Hoflund, however, alleges that from June through August of 2002, Midgely made various inappropriate sexually explicit comments and gestures towards her, to which Hoflund objected. Hoflund reported some of these incidents to AGC. Hoflund then alleges that on August 23, 2002, when Hoflund was retrieving items from the kitchen, Midgely inappropriately touched her with a fly swatter. Hoflund again objected, but did not immediately report this incident to AGC. Later that same afternoon, Hoflund returned to the kitchen to retrieve something for a patron, where Midgely allegedly positioned himself behind Hoflund and when she turned around, grabbed her and made a sexually explicit statement.

[¶6] At the end of her shift, Hoflund informed AGC of the alleged encounters. Ultimately, Hoflund was asked to submit a written statement to AGC and AGC approached Midgely about the alleged occurrences, which he denied. Hoflund also discussed the alleged incidents with the Cheyenne Police Department but chose not to file an official complaint.

[¶7] On August 28, 2002, Hoflund appeared before the AGC board of directors and was advised that AGC had hired an independent investigator to look into the matter. At this time, Hoflund informed AGC that she was uncomfortable working if Midgely was present in the building. AGC then placed Midgely on administrative leave to facilitate a change in the work schedule. These changes resulted in Hoflund and Midgely working at different times. Both parties were advised that they could not make any changes to their assigned schedule without authorization.

[¶8] Ultimately, the results of the investigation were deemed inconclusive by AGC. However, AGC decided to adopt a written sexual harassment policy. This policy included a clause preventing retaliation against an individual reporting an allegation of sexual harassment. All AGC employees, including Hoflund and Midgely, were presented with the policy. Hoflund and Midgely were also instructed that if the other was working or already at the club for social purposes prior to their arrival, they were to leave the premises immediately.

[¶9] On September 12, 2002, and on a number of additional occasions thereafter, Midgely entered the restaurant of the club when Hoflund was working. AGC was informed of these occurrences. Hoflund decided to file a formal complaint with the Cheyenne Police Department concerning her alleged second encounter of August 23, 2002, with Midgely. On September 18, 2002, the Cheyenne Police Department served Midgely with a citation for rude and indecent behavior.

[¶10] At the end of her shift on September 20, 2002, Hoflund prepared her cash drawer statement as required. When doing so, she inaccurately stated that she had $200.00 worth of twenty-dollar bills when she actually had only one twenty-dollar bill in her cash drawer. The following day, Hoflund was questioned about this discrepancy by AGC. Eventually, Hoflund's mistake was realized and Hoflund was warned that errors of this nature were unacceptable to AGC. Hoflund had experienced previous similar issues concerning the balancing of her cash drawer and had been admonished by AGC. Confrontational and angry words were exchanged during the meeting, with Hoflund repeatedly asking if she was being fired. AGC then informed Hoflund that she was, in fact, being terminated.

[¶11] On December 10, 2002, Hoflund filed her complaint. Substantial discovery was completed and AGC filed its motion for summary judgment, which Hoflund opposed. After the hearing, the district court granted summary judgment for AGC finding that Hoflund failed to provide any bargained-for consideration with respect to the enactment of the sexual harassment policy, thus her employment with AGC remained "at-will." Additionally, the district court determined that Hoflund failed to exhaust her administrative remedies with respect to any implied retaliatory discharge claim asserted in her first cause of action. The district court also found that no special relationship existed between Hoflund and AGC and, therefore, Hoflund could not assert a valid breach of the covenant of good faith and fair dealing cause of action. Finally, the district court ruled that because Hoflund's termination was lawful, she had no claim for intentional infliction of emotional distress and that Hoflund presented no facts to support her claim of defamation.² This appeal followed.

STANDARD OF REVIEW

[¶12] In Markstein v. Countryside I, L.L.C., 2003 WY 122, ¶11, 77 P.3d 389, ¶11 (Wyo. 2003), we again set out our well-established standard for review of summary judgment cases. Therein, we stated:

Summary judgment motions are determined under the following language from W.R.C.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The purpose of summary judgment is to dispose of suits before trial that present no genuine issue of material fact. Moore v. Kiljander, 604 P.2d 204, 207 (Wyo. 1979). Summary judgment is a drastic remedy designed to pierce the formal allegations and reach the merits of the controversy, but only where no genuine issue of material fact is present. Weaver v. Blue Cross Blue Shield of Wyoming, 609 P.2d 984, 986 (Wyo. 1980). A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Schuler v.

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