Jose v. Norwest Bank North Dakota, NA, 990080.

CourtUnited States State Supreme Court of North Dakota
Citation1999 ND 175,599 N.W.2d 293
Docket NumberNo. 990080.,990080.
PartiesDonald JOSE and Carol Beiswanger, Plaintiffs and Appellants, v. NORWEST BANK NORTH DAKOTA, N.A., and Pamela Anderson, Defendants and Appellees.
Decision Date30 August 1999

Deborah J. Carpenter, Carpenter Law Offices, Bismarck, ND, for plaintiffs and appellants.

Charles L. Chapman, Chapman & Chapman, Bismarck, ND, for defendants and appellees.

NEUMANN, Justice.

[¶ 1] Donald Jose and Carol Beiswanger appealed from a summary judgment dismissing their action against Norwest Bank North Dakota, N.A. (Norwest) for breach of employment contracts, wrongful termination, and defamation. We conclude there are no genuine issues of material fact and we affirm.


[¶ 2] Jose and Beiswanger worked in the trust department of Norwest in Bismarck. Jose, who had been employed with Norwest more than five years when terminated, worked with business and employee benefit trust accounts. Beiswanger, who had been employed with Norwest almost 20 years when terminated, worked with personal trust accounts. Both Jose and Beiswanger worked under the direction of Terrence Ness.

[¶ 3] About five months before their termination, Jose and Beiswanger expressed their concerns to Norwest's human resources employees about the work performance of Ness and his supervisor, Pamela Anderson, who worked in Norwest's Fargo office. According to Jose and Beiswanger, Norwest's president in Bismarck, Paul Kadavy, inquired about Ness's job performance with them and human resources employees. Jose and Beiswanger claim they "reluctantly" participated with Kadavy in an investigation of Ness and Anderson concerning their "work performance issues." They felt uncomfortable about their job security for cooperating in the investigation. Jose and Beiswanger were assured by Kadavy and human resources employees they would be protected from adverse action. They became particularly concerned about their job security when Kadavy left his position with Norwest in Bismarck to take a position in Las Vegas, Nevada. They believed Ness and Anderson were "looking for a reason to get rid" of them.

[¶ 4] On May 24, 1996, Jose and Beiswanger were alone in Ness's office with his permission for a work-related telephone conference. Beiswanger was seated behind Ness's desk and Jose was seated across from her, but the office remained open to other Norwest personnel who would enter with papers for filing. During the conference call, Beiswanger pulled open an unlocked drawer to rest her foot on it, and in the drawer Beiswanger discovered a file with her name on it and a file with Jose's name on it. After reviewing the contents of their files, Jose and Beiswanger returned them to the drawer. Beiswanger believed she had permission to view the materials in Ness's desk, and she had routinely done so in the past to find materials for clients.

[¶ 5] When Beiswanger returned to work from vacation on June 3, 1996, she and Jose were confronted about the file incident and placed on immediate suspension pending an investigation. On June 5, 1996, Jose and Beiswanger admitted to Norwest personnel they entered Ness's desk without express permission. Norwest terminated them for viewing their files in Ness's office, terming their misconduct as "breach of trust" and "breach of the code of ethics." Norwest circulated a memorandum to all Norwest staff titled "Staff Changes," which said: "This is to inform you that as of today, Don Jose and Carol Beiswanger are no longer employed at Norwest. Please refer any questions related to trust accounts and/or clients to Terry Ness." Believing they were terminated by Norwest in retaliation for their participation in Norwest's investigation into the trust department and the work performance of Ness and Anderson, Jose and Beiswanger sued Norwest alleging breach of their employment contracts, wrongful termination, and defamation.

[¶ 6] The trial court granted Norwest's motion for summary judgment dismissing the action. The trial court ruled there was no breach of an employment contract because Jose and Beiswanger were at will employees of Norwest. The court ruled there was no wrongful termination because their termination was not "a result of participation in lawful activity off the employer's premises during nonworking hours." The court also ruled Jose and Beiswanger presented no evidence to support their defamation claim. Jose and Beiswanger appealed.


[¶ 7] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in a light most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Opp v. Source One Management, Inc., 1999 ND 52, ¶ 15, 591 N.W.2d 101. If the moving party meets its initial burden of showing the absence of a genuine issue of material fact, the non-moving party may not rely on mere allegations, but must present competent evidence by affidavit or other comparable means creating a material factual dispute. Norwest Mortgage, Inc. v. Nevland, 1999 ND 51, ¶ 4, 591 N.W.2d 109. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Hurt v. Freeland, 1999 ND 12, ¶ 8, 589 N.W.2d 551.

[¶ 8] For purposes of this appeal, we view the evidence in the light most favorable to Jose and Beiswanger. Although Norwest disputes that its stated reasons of "breach of trust" and "breach of the code of ethics" for terminating Jose and Beiswanger were merely a pretext, we accept as true Jose and Beiswanger's allegation Norwest actually terminated them in retaliation for participating in the investigation of the job performances of Ness and Anderson.


[¶ 9] Jose and Beiswanger allege their termination was in violation of the terms of their employment contracts with Norwest.

[¶ 10] In North Dakota, employment without a definite term is presumed to be at will. Osterman-Levitt v. MedQuest, Inc., 513 N.W.2d 70, 72 (N.D.1994). The employment-at-will doctrine is codified at N.D.C.C. § 34-03-01, which provides "[a]n employment having no specified term may be terminated at the will of either party on notice to the other, except when otherwise provided by this title." In an at-will employment situation, the employer can terminate the employee with or without cause. Phillips v. Dickinson Management, Inc., 1998 ND 123, ¶ 7, 580 N.W.2d 148. [¶ 11] The parties by contract can overcome the at-will presumption and create enforceable employment rights. Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 31, 574 N.W.2d 812. When an employer promulgates a manual of personnel policies, the entire manual will be examined to determine whether it discloses an intent to overcome the at-will presumption. Eldridge v. Evangelical Lutheran Good Samaritan Society, 417 N.W.2d 797, 799 (N.D.1987). If it does, an employer may be contractually bound by promises, express or implied, in the employee manual with respect to job security and termination procedures. Bailey v. Perkins Restaurants, Inc., 398 N.W.2d 120, 122 (N.D.1986). An explicit and conspicuous disclaimer in an employee personnel manual, stating no contract rights exist or the policies in it are not intended to create contractual rights, demonstrates the employer's intent the manual be only a guide for the employee. Olson v. Souris River Telecommunications, 1997 ND 10, ¶ 13, 558 N.W.2d 333; Schmidt v. Ramsey County, 488 N.W.2d 411, 413 (N.D.Ct.App.1992). If the intention of the parties can be ascertained from the terms of the personnel manual alone, its interpretation is a question of law. Bykonen v. United Hospital, 479 N.W.2d 140, 142 (N.D.1992).

[¶ 12] Norwest's employee manual contains a large-type, bold-face heading "Important Information Concerning Employment Policies And Your Employment," informing employees:

The Employment Policies were adopted by your Norwest subsidiary to help you understand some of the personnel policies and procedures that affect your employment. Please note that our policies and procedures change from time to time. We plan to publish periodic updates to keep you informed of changes; however, we may implement some changes immediately without advance notice.

In the next paragraph, Norwest informed its employees in a bold-print statement:

The Employment Policies are not a contract of employment. We recognize our employees' right to resign at any time for any reason; similarly we may terminate any employee at any time, with or without cause and with or without notice.

[¶ 13] In depositions, both Jose and Beiswanger testified they understood Norwest could terminate them with or without cause and they were subject to an at-will employment relationship. They do not claim they were hired for a definite term. Having reviewed Norwest's employment policies, we find nothing to rebut the presumption of at-will employment explicitly and conspicuously retained by Norwest. We conclude, as a matter of law, the employment policies did not become an enforceable employment agreement between Norwest and Jose and Beiswanger.

[¶ 14] Jose and Beiswanger contend the contract principle of good faith and fair dealing should nevertheless apply in an employment situation. In the past we have rejected attempts to engraft an implied covenant of good faith and fair dealing into the employment context. See Aaland v. Lake Region Grain Co-op., 511 N.W.2d 244, 247 (N.D.1994)

; Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 795 (N.D.1987); Sadler v. Basin Elec. Power Co-op., 409 N.W.2d 87, 89 (N.D.1987); Hillesland v. Federal Land Bank Ass'n, 407 N.W.2d 206, 215 (N.D.1987). Jose and Beiswanger have presented no persuasive argument to have us revisit those holdings, and w...

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