McLean v. Hyland Enterprises, Inc., No. 00-184

• Decision Date: 14 November 2001
• Docket Number: No. 00-184, No. 00-185, No. 00-186.
• Citation: 34 P.3d 1262,2001 WY 111
• Parties: Linda McLEAN, Appellant (Plaintiff), v. HYLAND ENTERPRISES, INC., Appellee (Defendant). Hyland Enterprises, Inc. Appellant (Defendant), v. Linda McLean, Appellee (Plaintiff). Robert M. McLean, Appellant (Plaintiff), v. Hyland Enterprises, Inc., Appellee (Defendant).
• Court: Wyoming Supreme Court

34 P.3d 1262

2001 WY 111

Linda McLEAN, Appellant (Plaintiff), v. HYLAND ENTERPRISES, INC., Appellee (Defendant).

Hyland Enterprises, Inc. Appellant (Defendant), v. Linda McLean, Appellee (Plaintiff).

Robert M. McLean, Appellant (Plaintiff), v. Hyland Enterprises, Inc., Appellee (Defendant).

Nos. 00-184, 00-185, 00-186.

Supreme Court of Wyoming.

November 14, 2001.

Bernard Q. Phelan, Cheyenne, WY, representing Linda McLean and Robert M. McLean.

Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, WY, representing Hyland Enterprises, Inc.

Before LEHMAN, C.J.; GOLDEN and HILL, JJ., and SPANGLER, D.J., (Ret.).

GOLDEN, Justice.

[¶ 1] These three consolidated appeals arise from related facts. Rob and Linda McLean, husband and wife, worked for Hyland Enterprises. In appeals No. 00-184 and No. 00-186, the McLeans allege they both were wrongfully terminated from Hyland Enterprises in retaliation for Rob McLean's refusing to perform what he believed to be an unsafe order. They also allege they were terminated in violation of terms contained in the company's employee policy manual. Hyland Enterprises denies the claim of wrongful termination, alleges that the appropriate relief for such a claim is not a tort action but rather an administrative action pursuant to the Wyoming Occupational Health and Safety Act, Wyo. Stat. Ann. § 27-11-101 through § 27-11-114 and corresponding rules, and denies having any employee policy manual.

[¶ 2] Summary judgment was granted to Hyland Enterprises on all but one count of the complaints filed in the district court. The one remaining count was the breach of implied contract action by Linda McLean wherein she claimed her at-will employment status was modified by an employee handbook and she was terminated in violation of terms contained in the employee handbook. In appeal No. 00-185, Hyland Enterprises appeals the denial of summary judgment on this one remaining count. The district court's denial of summary judgment is not subject to appeal, and therefore appeal No. 00-185 is hereby dismissed, and that matter is remanded to the district court for further proceedings. As to appeals No. 00-184 and No. 00-186, we affirm the district court's granting of summary judgment.

ISSUES

Appeal No. 00-184

[¶ 3] Appellant Linda McLean states the issues as:

Was summary judgment proper in plaintiff's claim for wrongful discharge in violation of public policy when there is evidence that plaintiff was terminated in retaliation for her and her husband's complaints about safety and termination for refusal to work?

Appellee Hyland Enterprises' issues are:

Did the district court judge properly grant summary judgment on the violation of public policy claim?

A. Can a spouse base a claim on her husband's complaint about alleged safety violations?

B. Can a claim be sustained when there is no public policy violation?

C. Are there other remedies available that preclude this claim?

Appeal No. 00-185

[¶ 4] Appellant Hyland Enterprises' states the issues as:

Did a draft employment manual create an implied contract of employment under the facts of this case? Stated in more precise terms:

I. Can a reasonable employee expect that a personnel manual that she has not read or received constitute[s] an offer by her employer?

II. Does there exist consideration to support an implied contract when there is no widespread distribution of the manual and the employee has not provided any additional benefit or suffered any detriment?

Appellee Linda McLean's issues are:

A. Where an employer has represented a policy manual containing job security rules as being "our company policies," is there sufficient evidence of intent to enter an employment contract to preclude summary judgment in a wrongful termination case?

B. Where an employer has rules regarding job security, must an employee supply additional consideration over her continued employment?

Appeal No. 00-186

[¶ 5] Appellant Rob McLean's issues are:

A. Was summary judgment proper when evidence showed that the plaintiff's presumptive status as an "at-will" employee was modified by the company's adopted policy providing for for-cause termination and that no action would be taken against an employee who refused to perform an unsafe directive?

B. Was summary judgment proper when there was sufficient evidence for a jury to find that a well established public policy against unsafe working conditions, for which there was no other adequate remedy, was undermined by a discharge motivated by disregard of such policy?

C. Was there sufficient evidence to demonstrate a prima facie case?

Appellee Hyland Enterprises' states the issues as:

1. Did the district court judge properly grant summary judgment on the basis that there was no implied contract of employment? Specifically, is an undistributed manual not seen by the appellant during his employment an implied contract of employment?

2. Did the district court judge properly grant summary judgment on the violation of public policy claim? Specifically when there exists no violation can such a claim be sustained? Does there exist other remedies that preclude the claim?

FACTS

[¶ 6] Although many material facts in this case are disputed, pursuant to the well-established standards applying to a review of summary judgment, we summarize the facts in the light most favorable to the non-moving parties. Doug Dowlin is the president and majority stockholder in Hyland Enterprises, Inc. (Hyland). Hyland engages in many different business enterprises including working on commercial water wells. Linda and Rob McLean are husband and wife. Linda was hired to work in the business office of Hyland in 1990. At that time, Hyland did not have a company policy manual in effect. Rob McLean was hired by Hyland in 1994. Mr. McLean did not fill out an employment application form. No employee policies were discussed with Mr. McLean when he was hired.

[¶ 7] Sometime in 1994, Hyland contracted with a consulting firm to draft various company operating policies and procedures. Hyland paid the consulting firm approximately $40,000 for the policy and procedure proposals. When received by Hyland, the various proposed operating policies and procedures were stored together in one book in Mr. Dowlin's office. They covered a wide range of topics including not only employee policies but also accounting and invoicing procedures and safety policies among other topics. The proposed employee policies contained in the book were not widely distributed to employees. Rob McLean never saw the employee policies while working for Hyland.

[¶ 8] Linda McLean, because of her office position, knew of the draft policy book. Mrs. McLean alleges that Mr. Dowlin told her that the various draft policies in the book were the company's policies. When the draft policies were received, Mr. Dowlin told her that the book would be kept in his office and that she could read the policies. Mrs. McLean referred to specific sections in the book as necessary to help her complete her office duties relating to invoicing and personnel issues. She used information from the policy book concerning such issues as vacation policies and confidentiality policies as well as many others.

[¶ 9] Rob McLean was hired primarily as a welder but was asked to perform other tasks on occasion. On August 27, 1996, Mr. Dowlin met with Mr. McLean and asked him to pull a well. Mr. Dowlin told Mr. McLean to take a particular mast truck for the job. This truck had been modified in-house by Hyland. Mr. McLean had several concerns regarding the adequacy of the modified mast truck to pull the well safely and expressed these concerns to Mr. Dowlin. Mr. Dowlin disagreed with Mr. McLean, believing that the truck was adequately designed and modified to do the job. Mr. McLean, however, continued to express concerns and refused to accept the assignment using that particular truck. Mr. Dowlin fired Mr. McLean for his refusal to use the modified mast truck.

[¶ 10] Mr. McLean contacted the Division of Workers' Safety and Compensation of the Wyoming Department of Employment (the Division) and filed a complaint alleging he had been fired for refusing an unsafe work assignment. On September 5, 1996, Mr. Dowlin told Linda McLean that Rob McLean had better get on with his life and stop causing trouble and that she was replaceable. On September 20, 1996, Mr. Dowlin fired Linda McLean. Mr. Dowlin refused to give a reason for the termination, saying only that Mrs. McLean was an at-will employee and he did not have to give a reason for terminating her. Mrs. McLean complained to the Division that she had been fired in retaliation for her husband's report to the Division.

[¶ 11] The Division investigated the McLeans' complaint that the mast truck was unsafe, that Rob McLean had been fired in retaliation for refusing to run the truck, and that Linda McLean had been fired in retaliation for her husband's reporting the situation to the Division. The Division inspected the mast truck on September 6, 1996, and interviewed several Hyland employees. The Division issued its final report on November 7, 1996. The Division determined that the mast truck at issue was safe for the proposed job. The Division also determined that there was not enough credible evidence to support a prima facie case of retaliatory termination by the McLeans against Hyland. No notice of violation was issued.

[¶ 12] Having failed to receive satisfactory relief from the administrative investigation, the McLeans proceeded to file the instant lawsuits. Linda McLean sued Hyland alleging wrongful termination, breach of contract, breach of covenant of good faith under both contract and tort theories, and intentional infliction of emotional distress. Summary judgment in favor of Hyland was granted on all counts except the count for breach of contract. In appeal No. 00-184, Mrs. McLean appeals only from the granting of summary judgment on the count for wrongful...