Raymond v. International Business Machines Corp., No. 2:95-CV-158.

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Writing for the CourtSessions
Citation954 F.Supp. 744
PartiesDavid RAYMOND, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORP., Defendant.
Decision Date27 January 1997
Docket NumberNo. 2:95-CV-158.

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954 F.Supp. 744
David RAYMOND, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORP., Defendant.
No. 2:95-CV-158.
United States District Court, D. Vermont.
January 27, 1997.

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COPYRIGHT MATERIAL OMITTED

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James Wayland Runcie, Ouimette & Runcie, Vergennes, VT, for plaintiff.

Heather Briggs, Downs, Rachlin & Martin, P.C., Burlington, VT, for defendant.

OPINION AND ORDER

SESSIONS, District Judge.


David Raymond brings this action against his former employer, International Business Machines Corporation ("IBM"), alleging breach of an employment contract and defamation in connection with his discharge from employment. Jurisdiction is based on diversity. IBM has moved for summary judgment on Raymond's claims. For the reasons that follow, IBM's motion is DENIED.

Factual Background

For the purpose of this summary judgment motion, the Court assumes the following facts are true. David Raymond worked for IBM from 1978 to November 1, 1993. He worked the night shift in equipment maintenance. In September or October of 1993, Raymond was concerned about several issues over which he disagreed with his manager, Paul Luneau. He had some concerns about safety, and he was upset that another employee had been allowed to go on day shift ahead of him. He took these concerns to Luneau's manager, Michael Wilson, in accordance with IBM's "Open Door" policy. Through this policy, an employee may request a review by higher management of his or her manager's actions.

In October 1993, a fellow employee, Lloyd Bachand, reported to Luneau that he had heard that Raymond and another worker had broken into Luneau's office some months before and read confidential personnel files. Luneau discussed the matter with Wilson, and Peter Potts of the Human Resources department. Luneau began an investigation of the allegation. As part of his investigation, Luneau interviewed Robert Howard, the co-worker accused of breaking into Luneau's office with Raymond. Howard told Luneau that he had accompanied Raymond

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to Luneau's office, where Raymond unlocked Luneau's credenza, removed personnel files and read them. Howard admitted reading his own personnel file.

Raymond was on vacation at the time the accusation was made and the investigation undertaken. Upon his return, Luneau confronted Raymond, and asked him if he had seen confidential material in his credenza. Raymond said no. Luneau then told Raymond he was fired. Luneau told Raymond that someone had accused him, but refused to identify the individual. Raymond asked, "Who was it, Bob Howard?" Luneau did not respond.

Raymond had an exit interview with personnel advisor Potts. Raymond was upset, and wanted to know how he could appeal the decision to fire him. Potts gave him some information about how he could appeal. Raymond told Potts that he had not done what he was accused of doing. Raymond also asked if he could work as a vendor. Potts said that at present IBM would probably not allow him back in to work as a vendor, but probably would in the future.

On his way home after being discharged, Raymond stopped at Howard's house. He wanted to find out whether Howard knew anything about why he was fired. Howard told him that he had told Luneau that Raymond had seen the confidential material.

Raymond requested a review of his discharge with the senior site executive, Doug Grose, through IBM's Open Door policy. Grose appointed an Open Door investigator to review the situation. The investigator concluded that management had made the right decision. Based on the investigation results, Grose upheld the management's decision to discharge Raymond.

On May 24, 1995, Raymond filed this action against IBM, alleging breach of contract in that IBM fired him without just cause (Count I); that it fired him in retaliation for his use of the Open Door procedure to question his working conditions (Count II); and that it fired him without a reasonable investigation of the accusation, and without a reasonable appeal process (Count III).1 He also alleged that IBM is liable for defamation under the doctrine of compelled self-publication (Count IV). IBM moved for summary judgment on all counts on March 29, 1996.

Discussion

Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The evidence of the nonmoving party is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970).

Unless there is sufficient evidence to enable a jury to return a verdict in favor of the nonmoving party, "there is no issue for trial. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted).

I. Breach of Contract—Just Cause Termination (Count I)

Raymond claims that the IBM employee handbook, "About Your Company," contained language which modified the at-will employment relationship and created a contract requiring good cause for termination. He also asserts that IBM had a company-wide policy that employees would only be fired for just cause, and that more than one manager communicated this policy to him. IBM insists that Raymond was an at-will employee, and argues that, assuming that good cause was required for termination, IBM had good cause to fire Raymond.

In Vermont, employment for an indefinite period is presumed to be employment at will, "terminable at any time, for any

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reason or for none at all."2 Sherman v. Rutland Hosp., Inc., 146 Vt. 204, 207, 500 A.2d 230 (1985). See also McKenny v. John V. Carr & Son, Inc., 922 F.Supp. 967, 974 (D.Vt.1996). This presumption may be rebutted by evidence indicating that the employer expressly or by clear implication foreclosed its right to terminate except for cause. Id., citing Benoir v. Ethan Allen, Inc., 147 Vt. 268, 270, 514 A.2d 716 (1986).

At-will employment contracts may be modified by express agreement, statute, public policy, the personnel policies or practices of the employer, and actions or communications by the employer reflecting assurances of continued employment. Foote v. Simmonds Precision Products Co., 158 Vt. 566, 570-71, 613 A.2d 1277 (1992); McKenny, 922 F.Supp. at 975 (citing Benoir, 147 Vt. at 270, 514 A.2d 716; Ploof v. Brooks Drug, Inc., Civ. No. 89-270, 1991 WL 497170 (D.Vt. Aug. 28, 1991)). An employer may unilaterally modify an employee's at-will status by adopting written company policies that are inconsistent with that status. McKenny, 922 F.Supp. at 977 (citing Taylor v. National Life Ins. Co., 161 Vt. 457, 464, 652 A.2d 466, 471 (1993)).

Whether a handbook's provisions have established contractual rights will usually be a question for the jury. Farnum v. Brattleboro Retreat, ___ Vt. ___, ___, 671 A.2d 1249, 1254 (1995); Taylor, 161 Vt. at 465, 652 A.2d 466. See also Mecier v. Branon, 930 F.Supp. 165, 169 (D.Vt.1996); Clement v. Woodstock Resort Corp., No. 95-375, 1996 WL 627371 (Vt. Oct. 10, 1996). Only if the evidence would not permit a reasonable jury to find that the handbook modified an at-will employment will summary judgment be appropriate. See Madden v. Omega Optical, Inc., ___ Vt. ___, ___, 683 A.2d 386, 389 (1996).

The parties have submitted evidence of five editions of IBM's handbook, issued in 1981, 1984, 1989, May 1993, and August 1993. In 1981, the handbook contained the following section, quoted in pertinent part:

Termination of Employment. Such termination may be initiated by an employee or by management. If you initiate the separation, it is considered a voluntary resignation....

Separation can also be initiated by management if an employee's performance fails to meet IBM standards or in such circumstances as serious misconduct or violation of company policy.

In 1984, the same section appeared in substantially similar form:

Termination of Employment. IBM has not established any specific term of employment; therefore, termination may be initiated at any time by either an employee or by management. If you initiate the separation, it is considered a voluntary resignation....

Separation can also be initiated by management if an employee fails to meet IBM's performance, punctuality or attendance standards, or if an employee engages in misconduct or violates a company policy.

In 1989, the same section appeared as follows, making clear that the listed reasons warranting discharge were not exclusive of other reasons:

Termination of Employment. IBM has not established any specific term of employment; therefore, termination may be initiated at any time by either an employee or by management. If you initiate the separation, it is considered a voluntary resignation....

Separation may also be initiated by management. Reasons for separation may include, but are not limited to: failing to meet IBM's performance, punctuality or attendance standards, engaging in misconduct or violating a company policy.

At 176. In another section of the handbook, entitled "Employee Conduct Guidelines," the employee was advised that "IBM has developed some specific policies and guidelines relating to employee conduct. If you engage in misconduct or violate a company policy, you are subject to disciplinary measures, which may include immediate termination of

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employment." There followed a list of "guidelines." At 177.

In May 1993 sections of the handbook were revised and made available online to employees. The "Termination of Employment" section was one of those...

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12 practice notes
  • Towson Univ. v. Conte, No. 55
    • United States
    • Court of Appeals of Maryland
    • November 17, 2004
    ...must be proven by a preponderance of the evidence to the trier of fact. See, e.g., Raymond v. International Business Machines, Corp., 954 F.Supp. 744, 751-52 (D.Vt.1997); cf. Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 538 (1993) ("If the employer p......
  • Knelman v. Middlebury Coll., Case No. 5:11–cv–123.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 28, 2012
    ...divergent opinions regarding whether the Vermont Supreme Court would adopt this doctrine. See Raymond v. Int'l Business Machines Corp., 954 F.Supp. 744, 755–56 (D.Vt.1997) (predicting that Vermont would adopt the doctrine based upon Wilcox v. Moon, 64 Vt. 450, 24 A. 244 (1892) but noting in......
  • White v. Blue Cross and Blue Shield of Massachusetts, Inc., SJC-09157 (MA 6/11/2004), SJC-09157
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 11, 2004
    ...based on the simple and unremarkable tort law concept of foreseeability. See, e.g., Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755-756 (D. Vt. 1997); Carey v. Mt. Desert Island Hosp., supra at 11; Chrzanowski v. Lichtman, 884 F. Supp. 751, 755 (W.D.N.Y. 1995); Odom v.......
  • White v. Blue Cross and Blue Shield of Massachusetts, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 11, 2004
    ...based on the simple and unremarkable tort law concept of foreseeability. See, e.g., Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755-756 (D. Vt. 1997); Carey v. Mt. Desert Island Hosp., supra at 11; Chrzanowski v. Lichtman, 884 F. Supp. 751, 755 (W.D.N.Y. 1995); Odom v.......
  • Request a trial to view additional results
12 cases
  • Towson Univ. v. Conte, No. 55
    • United States
    • Court of Appeals of Maryland
    • November 17, 2004
    ...must be proven by a preponderance of the evidence to the trier of fact. See, e.g., Raymond v. International Business Machines, Corp., 954 F.Supp. 744, 751-52 (D.Vt.1997); cf. Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 538 (1993) ("If the employer p......
  • Knelman v. Middlebury Coll., Case No. 5:11–cv–123.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 28, 2012
    ...divergent opinions regarding whether the Vermont Supreme Court would adopt this doctrine. See Raymond v. Int'l Business Machines Corp., 954 F.Supp. 744, 755–56 (D.Vt.1997) (predicting that Vermont would adopt the doctrine based upon Wilcox v. Moon, 64 Vt. 450, 24 A. 244 (1892) but noting in......
  • White v. Blue Cross and Blue Shield of Massachusetts, Inc., SJC-09157 (MA 6/11/2004), SJC-09157
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 11, 2004
    ...based on the simple and unremarkable tort law concept of foreseeability. See, e.g., Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755-756 (D. Vt. 1997); Carey v. Mt. Desert Island Hosp., supra at 11; Chrzanowski v. Lichtman, 884 F. Supp. 751, 755 (W.D.N.Y. 1995); Odom v.......
  • White v. Blue Cross and Blue Shield of Massachusetts, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 11, 2004
    ...based on the simple and unremarkable tort law concept of foreseeability. See, e.g., Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755-756 (D. Vt. 1997); Carey v. Mt. Desert Island Hosp., supra at 11; Chrzanowski v. Lichtman, 884 F. Supp. 751, 755 (W.D.N.Y. 1995); Odom v.......
  • Request a trial to view additional results

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