Raymond v. Pacific Chemical
| Decision Date | 13 December 1999 |
| Docket Number | No. 42595-1-I.,42595-1-I. |
| Citation | 992 P.2d 517,98 Wash.App. 739 |
| Court | Washington Court of Appeals |
| Parties | Terry RAYMOND, husband, Carmella J. Raymond, his wife, and the marital community comprised thereof, Appellants, v. PACIFIC CHEMICAL, a division of Pace International, L.P.; S/L III, Inc., a Washington corporation; Richard Hunter and Jane Doe Hunter and the marital community comprised thereof; Glen Gay and Karen Gay and the marital community comprised thereof; William Boring and Pam Boring and the marital community comprised thereof; and Phil Ward and Kay Ward and the marital community comprised thereof, Respondents. |
A. Richard Maloney, Seattle, for Appellants.
Ralph Crockett Pond, Lane Powell Spears Lubersky, Seattle, for Respondents.
Terry and Carmella Raymond appeal the dismissal of their wrongful discharge claims against Terry Raymond's employer, Pacific Chemical, and his managers and supervisors. The Raymonds contend that the trial court erred in dismissing their claims based on Terry's reliance on provisions in an employee handbook and Pacific Chemical's assertion of a noncompetition covenant following Terry's termination. They also contend that the trial court erred in dismissing their discriminatory discharge claims against Terry's Pacific Chemical supervisors. We affirm.
Terry Raymond was a sales representative for Pacific Chemical, a division of Pace International, L.P., from 1973 to 1977, 1980 to 1982, and 1992 to 1996. In May 1992, Terry was working as a sales representative for Wesmar, a Pacific Chemical competitor, when Pacific Chemical rehired him by offering him the opportunity to increase its sales in Alaska.
On his return to Pacific Chemical in 1992, Terry signed a "Salesman Agreement" that set forth the employment relationship between the parties. The agreement states:
10. That my employment hereunder is terminable at the will of either the Company or myself.
Shortly thereafter, Terry received a handbook describing the company's policies and benefits, which was issued to all employees of Pace International. A second edition of the handbook, substantially unchanged, was issued to Pace employees in February 1994. The handbook's introduction refers to employees' "rights and ... responsibilities while employed at Pace." Under the heading "PROBATION AND TERMINATION," the handbook contains the following provision:
In July 1996, shortly before Terry left on a planned vacation, he was told that the company was reassigning him from the southeast Alaska sales region to a region in Seattle. Terry was also notified that the company was changing the way in which he would be compensated. Previously, Terry had received commissions on his sales and a guaranteed minimum salary of $3,900 per month, resulting in earnings of approximately $66,800 in 1995. Under the new compensation plan, Terry would receive a base salary of approximately $54,720, a stipend for gas, and bonuses that reflected his sales performance. Although Pacific Chemical asserted that the new plan did not represent a substantial change in Terry's compensation, Terry believed that the company had conditioned the bonuses on unrealistically high levels of performance and that the new plan would result in a substantially reduced salary.
Pacific Chemical terminated Terry five weeks after he returned from vacation, citing his attitude toward the company and its managers and insubordination regarding his reassignment. In a formal statement identifying the reasons for dismissal, the company indicated that it considered Terry's behavior to be severe breaches of discipline that warranted termination as outlined in the Pace International handbook. Pacific Chemical subsequently asserted that there were several problems with Terry's job performance, attire, reports to the company, and interaction with customers and co-workers. Terry later admitted in a deposition that he had complained to his Alaska clients that the reorganization of the sales territories was a mistake and would affect the company's ability to provide service and respond to customers' safety concerns.
After Terry was terminated, Wesmar offered to rehire him to solicit orders from his old Pacific Chemical accounts in Alaska. Although Terry's 1992 employment agreement contained a noncompetition covenant, Terry initially received reassurances that Pacific Chemical would not prevent him from working for Wesmar. But after the Raymonds sought additional compensation for Terry's discharge, Pacific Chemical threatened both Terry and Wesmar with litigation to enforce the covenant.
The Raymonds sued Pacific Chemical and Richard Hunter, Glen Gay, William Boring, and Phil Ward, Terry's supervisors at Pacific Chemical and Pace, alleging that Terry's termination violated provisions in the employee handbook and was part of a plan to terminate older sales representatives. The Raymonds also contended that Pacific Chemical's threat to enforce the noncompetition covenant constituted tortious interference with a business expectancy, and they sought a declaratory judgment finding that the restrictive covenant was invalid.
The defendants moved for summary judgment on all claims. The trial court granted the motion with respect to all claims except the Raymonds' age, discrimination claim against Pacific Chemical, which the Raymonds later voluntarily, (nonsuited. The court further ruled that in light of its dismissal of the remaining claims, it need not reach the issue of the noncompetition covenant's validity.
At oral argument on the summary judgment motions, the Raymonds moved to strike all evidence submitted by the defendants in support of the motions, arguing in part that the declarations of Glen Gay, Richard Hunter, William Boring, and Phil Ward did not conform to RCW 9A.72.085 and the civil and general rules.1 None of the declarations were declared under penalty of perjury and under state law, and none stated the place of execution. The court declined to consider the motion, indicating that it was not timely. The Raymonds contend that the court erred in failing to strike the declarations.
A trial court may not consider inadmissible evidence when ruling on a summary judgment motion. King County Fire Protection Dists. Nos. 16, 36, & 40 v. Housing Auth., 123 Wash.2d 819, 826, 872 P.2d 516 (1994). But if the documents supporting the motion do not conform to the requirements of the rules, the opposing party must file a timely motion to strike the documents. Burmeister v. State Farm Ins. Co., 92 Wash.App. 359, 365, 966 P.2d 921 (1998); Meadows v. Grant's Auto Brokers, Inc., 71 Wash.2d 874, 881, 431 P.2d 216 (1967). The court's ruling on a motion to strike is discretionary. Burmeister, 92 Wash.App. at 365, 966 P.2d 921.
Here, the Raymonds did not move to strike the nonconforming declarations until oral argument on the summary judgment motions. In addition, before judgment was entered, the defendants submitted amended declarations that were identical in content and that complied with the statutory requirements. Thus, there is no indication that the trial court improperly relied on inadmissible testimony in ruling on the summary judgment motions. We conclude that the trial court did not err in refusing to consider the motion to strike.
The Raymonds next contend that Terry's termination violated the provisions governing probation and termination in the Pace International handbook notwithstanding the terms of his employment agreement, which provided that his employment was terminable at will. They first contend that the defendants improperly submitted a copy of the agreement to the trial court and failed to establish the document's authenticity. In support of their argument, the Raymonds note that the defendant's copy of the agreement is dated May 11, 1992, but Terry's terms of employment for that year refer to an agreement completed on April 28, 1992.
We find that these contentions are without merit. In a deposition, Terry testified that he recognized the document and confirmed that he signed it when he was rehired by Pacific Chemical in 1992. Terry identified the document as "a Pacific Chemical salesman's agreement" and verified his signature at the end of the agreement. He testified that he did not remember when he executed the agreement, but acknowledged that he signed it after he was rehired from Wesmar.
Q. [Y]ou described the circumstances under which you were persuaded to return to Pacific Chemical by Brooke Van Wkly when you were working at Wesmar. Do you remember that?
A. I do.
Q. Do you recall any discussions with anyone at Pacific Chemical regarding the execution of this Pacific Chemical salesman agreement as part of the deal you cut at that point?
A. Yes, I do.
The Raymonds also contend that the terms of the agreement applied only to Terry's first year of employment. The agreement states:
2. That the following compensation, in addition to the commissions earned by me, shall be paid only for the period hereinafter set forth and provided further that I am employed by the Company during...
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