Howcroft v. Mountain States Tel. and Tel. Co.

• Decision Date: 28 April 1989
• Docket Number: Civ. No. 88-C-0057A.
• Citation: 712 F. Supp. 1514
• Parties: Michael Brent HOWCROFT, Plaintiff, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant.
• Court: U.S. District Court — District of Utah

712 F. Supp. 1514

Michael Brent HOWCROFT, Plaintiff, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant.

Civ. No. 88-C-0057A.

United States District Court, D. Utah, C.D.

April 28, 1989.

COPYRIGHT MATERIAL OMITTED

Matthew B. Durrant, Kimball, Parr, Crockett & Waddoups, Salt Lake City, Utah, for plaintiff.

Floyd A. Jensen, Salt Lake City, Utah, for defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ALDON J. ANDERSON, Senior District Judge.

The plaintiff, Michael Brent Howcroft, asserts thirteen claims arising from his termination from employment with the defendant, The Mountain States Telephone and Telegraph Company ("Mountain Bell"). Mountain Bell has moved for summary judgment on all thirteen claims. A hearing on the motion was held on December 9, 1988. The court reviewed the oral and written arguments and other documents of record and drafted a tentative opinion. The Utah Supreme Court then entered its decision in the case of Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989), which this court concluded may significantly impact the decision on the state law claims in this case. The court therefore asked counsel to submit briefs taking the rulings of the Berube case into account. The briefs were filed and have been carefully considered, and the court now enters its opinion on summary judgment.

STANDARDS FOR SUMMARY JUDGMENT

Summary judgment is proper only when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure; Barnson v. United States, 816 F.2d 549, 552 (10th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987).

The moving party must show entitlement beyond a reasonable doubt, and if an inference can be drawn from which the nonmovant might recover, summary judgment should be denied. Ewell v. United States, 776 F.2d 246, 249-50 (10th Cir.1985). However, "the mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. Moreover, summary judgment is mandated if "after adequate time for discovery and upon motion, ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

FACTS

The undisputed facts set forth in the parties' memoranda may be summarized as follows:

1. Howcroft worked for Western Electric, an affiliated company of Mountain Bell, from 1970 to 1977. He began working for Mountain Bell itself in 1978.

2. Howcroft signed written contracts relating to the Mountain Bell Code of Conduct and use of a Mountain Bell VISA credit card. However, he cannot recall signing any document which promised him a definite term of employment.

3. In February 1984, Howcroft was promoted to an assistant manager and was transferred to Mountain Bell's Administrative Services Department under a female supervisor, Cheryl Harris, who concurred in his selection. His duties included supervising implementation of computer-network programs and training subordinates to operate computers. Specifically, he had overall responsibility for installing and operating a Wang computer system at Mountain Bell's Utah headquarters.

4. When Mountain Bell issued the VISA card to Howcroft, it required him to sign an agreement entitled "Use of Mountain Bell VISA Card," which sets forth the conditions governing use of the card (Exhibit "B" to defendant's memorandum).

5. The VISA card agreement specified that the card could not be used for personal purchases. However, Howcroft used the card for personal purchases on various occasions between 1984 and March 1987. He was reprimanded for doing so, and he reimbursed Mountain Bell for most if not all of these purchases.

6. For purposes of this motion only, Mountain Bell accepts the following version of Howcroft's use of the VISA card to charge artwork:

About March 1987, Howcroft mailed a postcard to enter a contest sponsored by a company known as Federal Sterling. He was contacted by a salesman at Federal Sterling who urged him to purchase signed Salvador Dali prints. He informed the salesman that he was not interested in purchasing the artwork, but the salesman persisted, urging him to at least monitor the market. Howcroft agreed to do so, and the salesman then insisted that Howcroft provide a credit card number to verify his identity. Howcroft explained that he had no personal credit card, only the company credit card which could not be charged under any circumstances. The salesman said the company credit card number would satisfy his purposes even though it would not be charged. Relying on these assurances, Howcroft gave the salesman the company credit card number.

Later, Howcroft received a VISA statement which indicated a $2,670 charge to a company called "The Frame Station" in Scottsdale, Arizona. He learned that the charge related to Federal Sterling, so he contacted Federal Sterling and was informed that there had been a clerical error and that a credit would be issued immediately.

Federal Sterling sent a credit letter which Howcroft showed to his supervisor, Harris. (Mountain Bell's procedure required that a cardholder's superior review the VISA statement.) This was the first notice to Mountain Bell of the $2,670 charge. Harris called Federal Sterling and spoke with Sherlyn Burkhart, a clerk, without giving Howcroft an opportunity for further explanation.

Mountain Bell accused Howcroft of having authorized the charge of the artwork with the intent to defraud Mountain Bell. Evidence would show that Federal Sterling had been accused by others of making unauthorized charges to credit cards.

7. Following its inquiry about the artwork charge, Mountain Bell determined that Howcroft should be dismissed. The final decision to dismiss him was made by Gerald Moore, an upper level male manager.

8. Howcroft was dismissed about April 10, 1987. His position was then filled by another male, Mike Ohlsen.

9. On May 20, 1987, Howcroft filed a complaint with the Industrial Commission and the Equal Employment Opportunity Commission (EEOC) and was issued a "right to sue" notice.

10. About August 19, 1987, Howcroft applied for employment with Wang Laboratories, Inc., but was not hired. Wang's representative, Joyce Nikolai, said Howcroft was not hired because he lacked a college degree. Another Wang employee, Greg Turman, learned from Harris that Howcroft left Mountain Bell "on unhappy terms." However, Turman denied passing this information on to Nikolai, who was responsible for the hiring decision.

ISSUES OF FACT AND LAW

Mountain Bell maintains that there are no genuine issues of material fact as to any of the thirteen claims and that it is entitled to judgment on each of them as a matter of law. Specifically, Mountain Bell argues that because Howcroft was an employee at will, he has no common law claims arising from his discharge. In addition, Mountain Bell insists that Howcroft has failed to make a showing sufficient to establish the existence of the elements essential to his claims of retaliation, intentional infliction of emotional distress, slander and discrimination on the basis of sex. See, Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

Howcroft, on the other hand, argues that there are genuine issues of material fact and that these issues involve such questions as: (1) What were Mountain Bell's true motives and actual basis for discharging Howcroft? (2) What were Mountain Bell's and Howcroft's understanding and intent regarding the terms of his employment? (3) Did Howcroft charge the artwork? (4) Did Howcroft willfully violate the Mountain Bell Code of Conduct? (5) Was Mountain Bell's investigation done in a reckless fashion? (6) Did Mountain Bell make statements to Wang damaging Howcroft's job prospects with Wang? (7) Did Mountain Bell slander Howcroft?

These conclusory questions are not easily correlated with the issues of fact which Howcroft seeks to raise regarding each of his claims. Nevertheless, the court has examined each of the claims to determine what factual issues remain. For reasons more fully set forth below, the court finds that Mountain Bell is entitled to partial summary judgment.

DISCUSSION

As to Howcroft's state law claims, the court must apply the Utah Supreme Court's most recent statements of Utah law. See Southwest Forest Industries, Inc. v. Sutton, 868 F.2d 352, 354 (10th Cir.1989); Robinson v. Volkswagen of America, Inc., 803 F.2d 572, 574 (10th Cir. 1986).

Utah follows the "at-will employment rule," which creates a presumption that a personal employment contract is nothing more than an indefinite general hiring which is terminable at the will of either party. Bihlmaier v. Carson, 603 P.2d 790, 792 (Utah 1979). However, an employment contract has been held to be terminable only for cause if there is an "implied or express stipulation as to the duration" of the contract or if there is "good consideration in addition to the services contracted to be rendered." Rose v. Allied Development Co., 719 P.2d 83, 85-86 (Utah 1986).

In a recent Utah Supreme Court decision, Justice Durham concluded that other exceptions to the at-will rule may also be warranted. Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989). She explained that the rule is "merely a rule of contract construction and not a legal principle." Id. at 1044. "Although in the past the presumption in favor of at-will employment has been difficult to overcome," Justice Durham believed that "rigid adherence to the...