Payne v. Rozendaal, 83-563

Citation520 A.2d 586,147 Vt. 488
Decision Date26 September 1986
Docket NumberNo. 83-563,83-563
CourtUnited States State Supreme Court of Vermont
Parties, 41 Fair Empl.Prac.Cas. (BNA) 1748, 42 Empl. Prac. Dec. P 36,886, 1 IER Cases 800 Paul PAYNE v. Jan W. ROZENDAAL, et al. Albert TREPANIER, et al. v. Jan W. ROZENDAAL, et al.

Michael S. Brow of Sylvester & Maley, Inc., Burlington, for plaintiff-appellant Payne.

Francis X. Murray and John T. Leddy of McNeil, Murray & Sorrell, Inc., Burlington, for plaintiffs-appellants Trepanier, et al.

Dinse, Allen & Erdmann, Burlington, for defendants-appellees Rozendaal, Nordic Ford, Inc., Nordic Holdings, Inc., and Cidron Ford, Inc.

Alan D. Port, William E. Roper, and John T. Sartore of Paul, Frank & Collins, Inc., Burlington, for defendants-appellees Getting Organized, Inc., and Styles.

Before HILL, PECK, GIBSON and HAYES, JJ., and KEYSER, J. (Ret.), Specially Assigned.

HILL, Justice.

The plaintiffs, all former employees or representatives of former employees of Nordic Ford, Inc., commenced an action, in superior court, against the defendants. The plaintiffs claimed in Count I of their complaint that they were discharged from their employment solely on the basis of their age, and that such discharge is in contravention of state law. Pursuant to a motion for summary judgment filed by the defendants, the court dismissed this claim of the plaintiffs because it found no state law in existence at the time of the discharge which would have restricted the defendants' right to discharge the plaintiffs on the basis of their age. The court also dismissed plaintiffs' claims for intentional and negligent infliction of emotional distress and the claim for the wrongful death of one plaintiff as well as that plaintiff's spouse's claim for loss of consortium and consequential damages. The court dismissed these claims because it determined they could not be sustained in the absence of a viable claim for a wrongful discharge. Because we find that the plaintiffs presented a viable claim for recovery under state law for wrongful discharge, we reverse the superior court's dismissal of these claims.

The plaintiffs also alleged that defendants, Getting Organized, Inc. and its agent, Tommy Styles, tortiously interfered with the plaintiffs' employment contracts, by advising Nordic Ford, Inc. to discharge the plaintiffs because of their age. These defendants moved to dismiss this claim, or to have summary judgment granted in their favor, because they claimed they were privileged to act as they did. The court denied the motion after determining that justification for an interference with a contractual relationship is an affirmative defense, and that as a matter of law, the defendants had not established the defense of justification. We agree and affirm the superior court's denial of summary judgment on this claim.

I.

We will first address the plaintiffs' appeal from the granting of summary judgment, in favor of the defendants, on all but one count of the plaintiffs' complaint.

On appeal from an order granting summary judgment, we must assume that the facts asserted by the nonmoving party, if supported by affidavits or other evidence, are true. Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388, 1389 (1981). When viewed in this light, the facts are as follows.

In the late fall of 1979, automobile sales of Ford Motor Company were on a decline nationwide. At this time, Nordic Ford, Inc. had a large inventory of 1979 automobiles. With interest rates high at this time, and a general slowdown in the national economy, Nordic was forced to sell its 1979 automobiles with a small margin of profit. Consequently, Nordic's profits for 1979 were lower than expected.

Early in 1980, Nordic's president, Jan Rozendaal, sought the advice of an "efficiency firm" from Birmingham, Alabama named Getting Organized, Inc.. Tommy Styles, a representative from this firm, visited Nordic and interviewed a number of Nordic's employees. At the conclusion of a day of interviews, Styles met with Rozendaal and Nordic's general manager, Albert Trepanier. Styles said to the two of them that Nordic's new and used car departments had "a retirement home image" with only two employees age thirty or under and with one employee who was sixty-seven years old. Styles then recommended that he be allowed to change this. He suggested he use people from his firm to interview new people and replace the current employees with "young go-getters."

The following day, Trepanier met with Rozendaal and Rozendaal told Trepanier that he thought Style's advice was good and that "we will do what he said." Rozendaal also informed Trepanier that Styles had recommended that Trepanier be fired, along with the others. Trepanier then resigned, refusing to fire the other employees. Six of Nordic's employees, all over age fifty, were then fired. The employees retained by Nordic were all considerably younger.

For the purposes of ruling on the motions for summary judgment, the parties conceded that all the employees were dismissed solely on the basis of age, and that all the employees were working at Nordic under an "at will" employment contract. Thus no factual questions remained which would preclude an order of summary judgment being entered. V.R.C.P. 56.

In Vermont, under an "at will" employment contract, an employee may be discharged at any time with or without cause, "unless there is a clear and compelling public policy against the reason advanced for the discharge." Jones v. Keogh, 137 Vt. 562, 564, 409 A.2d 581, 582 (1979) (emphasis in original). The plaintiffs claim that a discharge from employment solely on the basis of age contravenes a clear and compelling public policy. We agree.

Although the parties to an at will employment contract necessarily have substantial leeway in terminating their contract, such rights are not absolute. Courts vary on the extent to which considerations of public policy will curtail an employer's right to discharge an at will employee. See Kovalesky v. A.M.C. Associated Merchandising Corp., 551 F.Supp. 544, 547-48 (S.D.N.Y.1982) (under N.Y. law, discharge must contravene specific public policy clearly expressed in laws, executive orders, regulations or constitution); Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 378-79, 710 P.2d 1025, 1033-34 (1985) (constitution, statutes and court decision form basis of public policy); Palmateer v. International Harvester Co., 85 Ill.2d 124, 130, 52 Ill.Dec. 13, 421 N.E.2d 876, 878-79 (1981) (discharge may contravene public policy not expressed in specific statutory or constitutional provisions); Martin v. Platt, 179 Ind.App. 688, 691-93, 386 N.E.2d 1026, 1028 (1979) (public policy exceptions limited to legislative directives); Cloutier v. Great Atlantic & Pacific Tea Co., 121 N.H. 915, 922, 436 A.2d 1140, 1144 (1981) (public policy exceptions not limited to statutory pronouncements and may be based on nonstatutory policies); Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 573, 335 N.W.2d 834, 840 (1983) (discharge must be "contrary to a fundamental and well-defined public policy as evidenced by existing law.").

Defendants argue that there is no public policy in Vermont prohibiting the discharge of an at will employee solely on the basis of age because at the time of the discharge, there was no statutory directive concerning age discrimination. It was not until the year following the plaintiffs' dismissals that the Vermont Legislature amended the Vermont Fair Employment Practices Act and made it an unlawful employment practice to discriminate against any individual on the basis of age. 21 V.S.A. § 495.

We do not find the absence of a statutory directive concerning age discrimination to be dispositive of whether a public policy against such practices existed at the time of the discharges. As the Supreme Court of Ohio stated in Pittsburgh, Cincinnati, Chicago & St. Louis Railway v. Kinney, 95 Ohio St. 64, 115 N.E. 505 (1916):

In substance, [public policy] may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man's plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.

Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people--in their clear consciousness and conviction of what is naturally and inherently just and right between man and man. It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic. When a course of conduct is cruel or shocking to the average man's conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute, or decree of court. It has frequently been said that such public policy, is a composite of constitutional provisions, statutes, and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination. When a contract is contrary to some provision of the Constitution, we say it is prohibited by the Constitution, not by public policy. When a contract is contrary to a statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy. Public policy is the cornerstone--the foundation--of all Constitutions, statutes, and judicial...

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