Kastner v. Blue Cross and Blue Shield of Kansas, Inc., 71659

• Decision Date: 05 May 1995
• Docket Number: No. 71659,71659
• Citation: 894 P.2d 909,21 Kan.App.2d 16
• Parties: , 131 Lab.Cas. P 58,019 Jerry KASTNER, Appellant, v. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Appellee.
• Court: Kansas Court of Appeals

Page 909

894 P.2d 909

21 Kan.App.2d 16, 131 Lab.Cas. P 58,019

Jerry KASTNER, Appellant, v. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Appellee.

No. 71659.

Court of Appeals of Kansas.

May 5, 1995.

Review Denied June 14, 1995.

Syllabus by the Court

1. The rules of summary judgment are stated and applied.

2. In the absence of a contract, express or implied, for employment between an employee and employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he or she has been discharged.

3. One exception to the employment-at-will doctrine is an implied-in-fact contract of employment. An implied-in-fact contract of employment arises from facts and circumstances showing mutual intent to contract.

4. Factors to be considered when determining if the parties had a mutual intent to contract include: (1) written or oral negotiations, (2) the conduct of the parties from the commencement of the employment relationship, (3) the usages of the business, (4) the situation and objective of the parties giving rise to the relationship, (5) the nature of the employment, and (6) any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time the employment commenced.

5. A party's intent must usually be proven by circumstantial evidence. Summary judgment is rarely appropriate when resolution of the dispositive issue of intent necessitates a determination of the state of mind of one or both the parties. However, summary judgment may be granted when the evidence shows no liability as a matter of law and where the essential facts are not in dispute. Furthermore, summary judgment may be granted if the plaintiff presents only evidence of his or her own unilateral expectation of continued employment.

6. To oppose summary judgment, the opposing party must actively come forward with something of evidentiary value to establish a disputed material fact. To have evidentiary value, the particular document or testimony relied upon by the party opposing summary judgment must be probative of that party's position on a material issue of fact. Probative evidence is that which furnishes, establishes, or contributes toward proof.

7. Under the facts of this case, personnel rules which are not bargained for cannot alone be the basis for an express or implied contract of employment.

8. The principle of law stated in Restatement (Second) of Contracts § 205 (1979), that every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement, is held to be overly broad and not applicable to employment at-will contracts.

9. An exception to the employment-at-will doctrine allows a cause of action against an employer who terminates an employee in retaliation for engaging in activities that are favored and protected by an important public policy. Before courts are justified in declaring the existence of a public policy, it should be so thoroughly established as a state of public mind--so united, definite, and fixed--that its existence is not subject to any substantial doubt.

10. When an employee alleges his or her at-will employment was wrongfully terminated in retaliation for engaging in an activity favored and protected by a well-established public policy, the employee has the burden of proving the employer had knowledge of the employee's activity prior to discharging the employee.

Douglas S. Wright, of Hendrix & Wright, of Topeka, for appellant.

Alan L. Rupe and Todd N. Tedesco, of Rupe & Girard Law Offices, P.A., of Wichita, for appellee.

Before PIERRON, P.J., RULON, J., and STEVEN R. BECKER, District Judge, Assigned.

PIERRON, Presiding Judge.

Plaintiff Jerry Kastner appeals from the summary judgment entered against him and in favor of his former employer, defendant Blue Cross and Blue Shield of Kansas, Inc. (Blue Cross). He argues genuine issues of material fact still exist regarding his claim that his employment was wrongfully terminated. We affirm.

Blue Cross extended an offer of employment to Kastner in June 1990. A letter dated June 5, 1990, confirmed the offer of employment and informed Kastner his employment would begin on June 18, 1990. The letter included Kastner's beginning monthly salary rate but contained no promise regarding the length of employment.

Kastner reported for work as a manager of office services on June 18, 1990, as instructed. At the orientation session that day, Kastner was given an employee handbook which contained the following disclaimer:

"This Employee Handbook constitutes a summary of the personnel policies and employee benefits of Blue Cross and Blue Shield of Kansas and its Subsidiary Corporations. The personnel policies or benefits stated herein may be altered at any time. This Handbook does not constitute any part of an agreement among Blue Cross and Blue Shield of Kansas, its Subsidiaries, and the organization's employees. This is an informational handbook and not a contract of employment."

Kastner recalls reading the disclaimer during the orientation. He also admits he did not review either the supervisor's manual or the employee handbook before he made the decision to go to work for Blue Cross. Kastner was advised at the orientation that the provisions of the employee handbook could be changed from time to time by Blue Cross.

At the orientation, Kastner did not read the entire handbook but briefly looked at the chapters. He was instructed that he could read the handbook at his leisure, and he later skimmed through it. According to Kastner, he had a general knowledge of the employee handbook. On June 18, 1990, Kastner signed the following statement:

"I verify that I have read the Kansas Blue Cross-Blue Shield Personnel Policy Booklet and agree to govern my actions accordingly during the length of my employment with the organization.

"I understand that violation of any policies covered in the booklet are just cause for termination."

In June 1990, a memorandum was sent to the board of directors, officers, and all exempt staff of Blue Cross, including Kastner. The memorandum informed the reader that "[i]t is a requirement, annually, that the Board of Directors and all exempt staff of Blue Cross and Blue Shield of Kansas, Inc., complete a Conflict of Interest Questionnaire." The memorandum included a corporate resolution adopted by the board of directors in 1983 which provided in relevant part:

" 'NOW, THEREFORE, BE IT RESOLVED: That annually all directors, officers and management employees shall participate in a conflict of interest procedure by completing a questionnaire which, together with explanatory information, will be forwarded to them, and that the Board of Directors of Blue Cross and Blue Shield of Kansas, Inc. adopts the following Code of Ethics:

" 'FIRST--Directors, officers and management employees shall exercise the utmost good faith in all transactions touching upon their duties to the corporation and its property. In their dealings with and on behalf of the corporation, they are held to a strict rule of honest and fair dealing between themselves and the corporation. They shall not use their positions, or knowledge gained therefrom, so that a conflict might arise between the corporation's interest and that of the individual.' "

On December 6, 1990, Kastner's supervisor, Bob Young, evaluated Kastner's first six months of employment as being within the "expected" range. Kastner received a rating of 108 out of a possible 196. He received a salary increase on December 10, 1990, and again on January 10, 1991. The later salary increase, amounting to 1%, was apparently necessitated by a change in the salary ranges of Blue Cross.

In January 1991, Kastner began experiencing stress from a number of different sources. During his deposition, Kastner testified that prior to January 23, 1991, he had been experiencing stress because of his own marital difficulties. On January 23, 1991, Kastner learned he was the potential defendant in an alienation of affections lawsuit. The potential plaintiff in the alienation of affections lawsuit was the husband of a Blue Cross employee, Alice Moser. Kastner was Moser's supervisor. The potential lawsuit caused additional stress to Kastner.

On January 25, 1991, Kastner asked Young to call him at home that evening. Young called Kastner, and the conversation centered around space planning for a building the company was purchasing. Kastner stated he got the impression that Young wanted him to lie to Young's supervisor about the amount of space available in the building.

Alice Moser's divorce was also discussed during the phone conversation. After Kastner informed Young that Moser was unproductive because of her pending divorce, Young suggested they do what they could to reconcile Moser and her husband to increase her productivity.

On January 30, 1991, Kastner and Young met in Young's office. During the meeting, Kastner told Young he felt like Young was asking him to lie to Young's supervisors regarding space planning. Kastner also told Young that he thought Young was harassing him to reconcile Moser and her husband. The meeting was stressful for Kastner. He requested that JoAnn Mzhickteno, the company's EEO Coordinator, be present for the remainder of the meeting. Immediately following the meeting with Young, Kastner met with Don Lynn, Young's supervisor. Kastner told Lynn about the problems he perceived with Young.

Kastner also went to see Mzhickteno to obtain a referral to an employee assistance counselor to help him deal with stress. The Employee Assistance Program (EAP) was one of the benefits available to the employees of Blue Cross. The program was described in the employee handbook as follows:

"The organization recognizes the fact that at times personal problems may have an adverse effect on...