Roberson v. Wal-Mart Stores, Inc.

• Citation: 44 P.3d 164,202 Ariz. 286
• Decision Date: 23 April 2002
• Docket Number: No. 1 CA-CV 00-0555.,1 CA-CV 00-0555.
• Parties: Jerry C. ROBERSON and Jean M. Roberson, husband and wife, Plaintiffs-Appellees, v. WAL-MART STORES, INC., a Delaware Corporation; and Richard C. Wong, an individual, Defendants-Appellants.
• Court: Court of Appeals of Arizona

44 P.3d 164

202 Ariz. 286

Jerry C. ROBERSON and Jean M. Roberson, husband and wife, Plaintiffs-Appellees, v. WAL-MART STORES, INC., a Delaware Corporation; and Richard C. Wong, an individual, Defendants-Appellants.

No. -0555.

Court of Appeals of Arizona, Division 1, Department D.

April 23, 2002.

Treon, Strick, Lucia & Aguirre, P.A. by Arthur G. Newman, Jr., Gerald J. Strick, Teri K. Raven, Phoenix, Attorneys for Appellees.

Thomas & Elardo, P.C. by Benjamin C. Thomas, Neal B. Thomas, Phoenix, Attorneys for Appellants.

OPINION

HALL, Judge.

¶ 1 Appellants Wal-Mart Stores, Inc. ("Wal-Mart") and Richard C. Wong ("Wong")¹ appeal from a jury verdict and judgment that Wal-Mart breached an implied contract when it terminated the employment of appellee Jerry Roberson ("Roberson"). We conclude that, as a matter of law, Roberson was an "at-will" employee and that the trial court therefore erred in denying Wal-Mart's motions for judgment as a matter of law ("JMOL"). Accordingly, we reverse.²

FACTS AND PROCEDURAL HISTORY

¶ 2 On appeal from the denial of a motion for JMOL, "we view the evidence and all reasonable inferences in the light most favorable to the nonmoving party." Murcott v. Best Western Int'l, Inc., 198 Ariz. 349, 356, ¶ 36, 9 P.3d 1088, 1095 (App.2000).

¶ 3 Roberson was first employed by Wal-Mart as a pharmacist-in-charge (pharmacy department manager) in October 1990 at its store in Claypool, Arizona. In 1991, he transferred to Wal-Mart's Apache Junction store, maintaining the pharmacist-in-charge position. He worked at the Apache Junction store until his termination on January 26, 1993.

¶ 4 As part of the employment process, Roberson signed an employment application that provided in relevant part:

I understand that this is not a contract for employment and that, even if employed, I will remain terminable-at-will and free to resign at any time I wish.

and

I ... understand that if hired I will be a "terminable-at-will" employee, and that my employment and compensation can be terminated with or without cause and with or without notice, at any time, at the option of either the company or myself. I further understand that no personnel recruiter or interviewer or other representative of the company other than the President of Wal-Mart Stores, Inc., or Vice President of Personnel has any authority to enter into any agreement for employment for any specified period of time.

¶ 5 Wal-Mart provided Roberson with a copy of the employee handbook given to all new employees, which he acknowledged reading. The first page of the handbook contained the following reservation:

The Company reserves the right to terminate any associate's employment at Wal-Mart's discretion. Furthermore, nothing stated in this handbook or by any member of management is intended to create any guarantees of any certain disciplinary procedures. ... Likewise, since you are not under contract, you are free to resign from the Company at any time.

(Emphasis supplied.) The handbook also contained the following disclaimers:

We do not work under contracts at Wal-Mart. Employment depends on performance and the Company's needs.... If management determines a working relationship should be dissolved, it may be done totally at Wal-Mart's discretion. Likewise, you are not under contract and may resign from the Company at any time.

and

The Associate Handbook is not intended to create any contractual right in favor of you or the Company. The Company reserves the right to change any section of the Associate Handbook at any time.

¶ 6 The handbook also stated:

We strongly believe our associates do not need to be represented by a labor union, nor does the Company need unions to tell us how to run our business or handle our own personnel relations. We strongly believe:

"THERE IS SIMPLY NO NEED FOR A UNION AT WAL-MART"

and

At Wal-Mart, your manager or supervisor is your COACH. He or she is expected to help you learn how to do your job and to help you solve any problems which make it difficult to do your job. Your management team will work with you.

¶ 7 Because Roberson was the manager of the pharmacy department Wal-Mart also provided him with a Pharmacy Division Operations Manual. Portions relevant to the employer-employee relationship are:

UNION POLICY

Wal-Mart strongly believes its associates do not need to be represented by a labor union, nor does the Company need unions to tell us how to run our business, or handle our own personnel relations.

* * * *

"There is simply no need for a union at Wal-Mart."

HIRING AND TERMINATION OF ASSOCIATES

All hiring and terminations will be done according to the guidelines, policies and procedures set down by the Wal-Mart Personnel Department.

The hiring and termination of Pharmacy hourly associates will be the responsibility of the Pharmacy Manager. Proper disciplinary guidelines should be followed (See Positive Discipline).

¶ 8 Beginning in April 1992, Roberson participated in Wal-Mart's Pharmacy Manager's Bonus Plan, which enabled pharmacy managers to earn a yearly bonus payment based on the profitability of their stores. Paragraph 9 of the copy of the Bonus Plan signed by Roberson on April 5, 1992, provides:

This plan is not to be construed as a guarantee of employment for any specific period of time or any specific type of work but is presented to you to explain how your compensation will be calculated. This is not a contract and your employment with the Company is terminable-at-will by either you or the Company at any time.

¶ 9 Throughout Roberson's employment there, Wal-Mart used "Performance Coaching"³ to improve associate behavior. The Wal-Mart Store Manual used in management training, instructed managers that:

Performance Coaching is a process to help associates correct and modify their behavior so they can continue their employment with us. Its purpose is to build better associates through feedback and coaching. Disciplinary actions must be applied in a fair, timely and consistent manner to be effective and to comply with the necessary legal requirements. Performance Coaching applies to Management associates as well as hourly associates. All management associates must be very familiar with this procedure, so that it may be properly applied.

Performance Coaching consists of four progressive steps: 1. coach and counsel, 2. verbal reminder, 3. written reminder, and 4. decision-making day. When an associate does not correct his or her behavior after coaching, verbal and written reminders, then a decision-making day is used. A decision-making day is when the associate takes the next scheduled work day off with pay "to give the associate one more chance to determine if he/she wants to work for Wal-Mart." If an associate refuses to sign the written reminder form, then the supervisor should "[h]ave the associate go immediately on a Decision Making Day."

¶ 10 On January 25, 1993, Roberson argued loudly with an assistant store manager in front of customers over the amount of a coupon to give a customer who received a misfilled prescription. The next day, Wong met with Roberson to "coach" him concerning the incident pursuant to Wal-Mart's Performance Coaching process. Wong had prepared in advance a written plan for improvement that he asked Roberson to sign. Despite several requests, Roberson refused to sign the plan because it was prepared in advance of the meeting and he was too upset to sign it. As a result, Wong fired Roberson that afternoon. By firing Roberson without first giving him a decision-making day, Wong violated Wal-Mart's Performance Coaching procedures.

¶ 11 Roberson sued Wal-Mart for breach of an implied contract of employment, wrongful termination based on age discrimination, and breach of the covenant of good faith and fair dealing. He claimed damages for lost wages, lost bonuses, lost career opportunities, lost health and other benefits, and for emotional distress.

¶ 12 The trial court denied Wal-Mart's motion for summary judgment, and the matter proceeded to trial. At the close of Roberson's case, the trial court denied Wal-Mart's motion for a directed verdict,⁴ subject to reconsideration at the close of Wal-Mart's case. At the close of all evidence, Wal-Mart renewed its motion for JMOL. The trial court granted Wal-Mart's motion as to the breach of the implied covenant of good faith and fair dealing claim; however, it permitted the breach of contract and wrongful termination claims to go to the jury. The jury returned a verdict in favor of Roberson on the breach of contract claim and awarded him damages in the amount of $257,958.⁵ The trial court entered judgment for Roberson on the jury verdict.

¶ 13 Wal-Mart filed a post-trial motion for reneWal-of its motion for JMOL. The trial court denied Wal-Mart's motion, stating:

A combination of statements made in the Employee Handbook and the Operations Manual could lead a reasonable juror to conclude that the employee, Plaintiff, reasonably thought he would not be terminated without performance coaching, including the cooling off day. Plaintiff knew about the Operations Manual because he was a supervisor in the Pharmacy Department. Other statements in the Employee Manual to the effect that a union was not needed, and that employees were aided through performance coaching to keep them on the job could be considered contrary to an at-will relationship.

Wal-Mart filed a timely notice of appeal.

STANDARD OF REVIEW

¶ 14 The test for granting a motion for JMOL is the same as that for granting a motion for summary judgment. Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). The "motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Id.; Ariz. R. Civ. P. 50(a)(1) (providing for judgment as a matter of law when "a party...