Ormsby v. Dana Kepner Co. of Wyo., Inc.

• Decision Date: 23 February 2000
• Docket Number: No. 97-83.,97-83.
• Citation: 997 P.2d 465
• Parties: Dorothy ORMSBY, Appellant (Plaintiff), v. DANA KEPNER CO. OF WYO. INC., a Wyoming Corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

997 P.2d 465

Dorothy ORMSBY, Appellant (Plaintiff), v. DANA KEPNER CO. OF WYO. INC., a Wyoming Corporation, Appellee (Defendant).

No. 97-83.

Supreme Court of Wyoming.

February 23, 2000.

Rehearing Denied March 16, 2000.

Representing Appellant: John R. Hursh and Donald J. Rissler of Central Wyoming Law Associates, P.C., Riverton, Wyoming.

Representing Appellee: Jerry N. Jones of Moye, Giles, O'Keefe, Vermeire & Gorrell, Denver, Colorado; and Frank D. Neville and Scott E. Ortiz of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

THOMAS, Justice.

The dispositive issue in this case arises out of the jury instructions given by the trial court to assist the jury in making its determination as to whether the Employee Benefit Handbook (Handbook) adopted by Dana Kepner Company of Wyoming, Inc. (Dana Kepner) constituted an offer of job security that had been accepted by Dorothy Ormsby (Ormsby). Collateral issues are asserted with respect to whether the Handbook created an implied-in-fact contract of employment, as a matter of law, and the failure to remove a challenged juror for cause. We hold that the jury instructions erroneously stated the applicable law, and the case must be reversed and remanded for a new trial. We do not perceive the Handbook as creating an employment contract as a matter of law, and the question of the existence of a contract must be resolved by the trier of fact. We do not address the claim of error relating to the challenge of the juror for cause because it is not likely to arise at the new trial.

In the Opening Brief of Appellant, submitted on behalf of Ormsby, the issues that are raised are:

ISSUE I

Did the district court err when it failed to find an implied-in-fact contract in this case as a matter of law?

ISSUE II

Did the district court err when the court failed to instruct the jury on what constitutes consideration in an employment contract case and on what elements the jury must find, in deciding whether the handbook in this case constituted an implied-in-fact contract?

ISSUE III

Did the district court err when the court failed to remove an admittedly biased juror under W.S. 1-11-203(vi) and (vii), thereby forcing appellant to waste one of her peremptory challenges, which resulted in the improper seating of a juror who ended up as foreman?

This statement of the issues is found in the Appellee's Answer Brief, filed on behalf of Dana Kepner:

Appellant's "Statement of Issues on Appeal" purports to set forth three issues for this Court's consideration. Two of those issues, the second and third, are not articulated in an objective manner. Appellee Dana Kepner Co. of Wyoming, Inc. ("Dana Kepner") submits that those issues should be stated more objectively as follows:

II. Did the trial court fail to properly instruct the jury on the elements of a breach of employment contract claim based on an employee handbook?

III. Did the trial court commit reversible error in denying Ormsby's challenge for cause of one of the prospective jurors?

In the Reply Brief of Appellant, these rebuttal issues are stated:

I. There were sufficient facts in the record to support Appellant[']s theory of the case[.]

II. A part[y's] contention instruction is insufficient to instruct a jury on the law of consideration as an element of a contract.

III. The Court's refusal to strike Hollister was plain error.

IV. Response to this Court's Order striking portions of [her] brief and amendment of opening brief.

Dana Kepner is in the business of supplying construction material for water and sewer projects. It is a subsidiary of a corporation that is based in Denver, Colorado, and it had an office in Casper. About May 15, 1991, Ormsby was hired as a temporary employee in Dana Kepner's Casper office through Ormsby's employer, Kelly Services. Ormsby was hired to work as a part-time administrative assistant, with responsibilities for answering the telephone, filing paperwork, checking items out of inventory, typing, and other general clerical tasks. About three months later, Ormsby left her job with Kelly Services, and became a full-time employee at Dana Kepner. Dana Kepner promptly enrolled her in the company's health care plan, and it waived any probationary period of employment.

In 1989, Dana Kepner had adopted the Handbook, which was in effect during Ormsby's period of employment with Dana Kepner. Ormsby saw a copy of the Handbook when she was hired full-time in August of 1991, but she did not receive a copy of her own until October 7, 1991. At that time, Ormsby signed an "Acknowledgment," which afforded to Dana Kepner the right to change anything in the Handbook and assured Ormsby that any changes would be communicated to her. Of significance to this case are the provisions relating to employee classifications, adjustment of employee complaints, and discipline. Those provisions of the Handbook read as follows:

IV. EMPLOYEE CLASSIFICATIONS

Each employee will initially be assigned to one of the classifications shown, to be changed as the employee's status or duties change.

A. Temporary Employee:

An employee hired on a temporary part-time or full-time basis, at a fixed hourly wage, not eligible for any company benefits unless otherwise specifically arranged during the hiring process.

B. Permanent Employee:

An employee hired on a permanent full-time or part-time basis, under one of the following sub-classifications:

1. Hourly Employee:

An employee paid on an hourly basis.

2. Regular Employee:

An employee paid on a monthly basis.

3. Sales Employee:

An employee doing outside sales work full time and paid on a monthly basis.

4. Branch Manager:

An employee managing one of our branches, and paid on a monthly basis.

5. Executive Employee:

An employee hired for executive work, and who is an officer of the company, to be paid on an annual basis, payably monthly.

6. Other:

The company may create additional classifications as necessary.

Each employee will be given an annual review by his supervisor, at which time the employee will be encouraged to discuss any problems or complaints he may have. His overall performance will be evaluated and discussed, and at that time any desired changes in classification or benefits will be made.

Permanent, Hourly and Regular Employees will be reviewed in the month of their anniversary date and any changes will be retroactive to the first of that month.

Sales Employees, Branch Managers and Executive Employees will be reviewed during the first calendar quarter of the year, regardless of anniversary date.

* * *

XXXIX. ADJUSTMENT OF EMPLOYEE COMPLAINTS

Two-way communication between the company and its employees is essential for maintaining a harmonious working relationship. This is especially true in connection with employee complaints or disputes.

If you believe that you are being treated unjustly according to accepted standards of a sound management-employee relationship, or you feel that the policies set forth in these guidelines are not being properly or fairly applied, you are encouraged to use the following procedures to get your complaint aired and adjusted.

1. You should first discuss the matter thoroughly with your supervisor who will be required to give you a complete answer promptly.

2. If you are not satisfied with your supervisor's response, you may appeal to the President for review.

It is both our intent and policy to encourage employees to bring their differences, or disputes, to us. You are assured that no employee will be retaliated against in any manner because the employee has sought to fairly adjust a complaint.

XL. DISCIPLINE

Disciplinary action is occasionally necessary in any organization. It would be unfair not to let you know where the company stands on the matter of maintaining discipline.

Naturally, there are certain rules and regulations contained in this book and others will be issued from time to time, so that we know what is expected in our relationships with one another and toward our customers.

Some things cannot be condoned.

1. Theft

2. Willful destruction of property

3. Fighting

4. Using non-prescribed narcotics

5. Being intoxicated on the job

6. Sleeping on the job

7. Gross misconduct

8. Gross negligence

9. Harassment of other employees

These are things that can result in immediate suspension or discharge.

In addition, there will be an occasional employee who will fall into poor personal or work habits. Counseling by the supervisor usually will be enough, but if counseling fails, appropriate action will be taken to resolve the problem.

Smoking by employees in the desk and file areas is strictly prohibited. Anyone wishing to smoke in the building may do so in designated areas.

Please note that "Smoke Breaks" are not provided. It is our intention that all employees are treated equally and fairly.

In April of 1992, Dana Kepner adopted a centralized computer system. Ormsby went to the Denver office and received training on the use of the computer system. When she returned to Casper, she was given the sole responsibility for performing tasks on the computer concerning customer orders and the preparation of invoices to facilitate payment for those orders. The computer system permitted Dana Kepner to generate customer invoices daily. At trial, Dana Kepner introduced evidence to establish cause for Ormsby's discharge. Its evidence was designed to demonstrate its claim that, beginning in early 1992, it had various problems with Ormsby's work performance. Testimony was received that Ormsby continually was late in running customer invoices; Ormsby had a poor attitude and was subject to sudden outbursts of temper; Ormsby did not follow proper filing and paperwork procedures; Ormsby did not respond well to constructive criticism; Ormsby did not answer the telephone properly; Ormsby had been rude to customers and even the company President on one occasion; and Ormsby was not able to get along with one...