Skelly v. Visiting Nurse Ass'n of Capital Region Inc.

• Decision Date: 08 December 1994
• Citation: 619 N.Y.S.2d 879,210 A.D.2d 683
• Parties: , 10 IER Cases 382 Ellen SKELLY, Appellant, v. VISITING NURSE ASSOCIATION OF The CAPITAL REGION INC. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 879

619 N.Y.S.2d 879

210 A.D.2d 683, 10 IER Cases 382

Ellen SKELLY, Appellant, v. VISITING NURSE ASSOCIATION OF The CAPITAL REGION INC. et

al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 8, 1994.

Ruberti, Girvin & Ferlazzo (Salvatore D. Ferlazzo, of counsel), Albany, for appellant.

Moran & Pronti (Jay A. Smith, of counsel), Clifton Park, for respondents.

Before CARDONA, P.J., and WHITE, CASEY and YESAWICH, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Spain, J.), entered April 15, 1994 in Rensselaer County, which granted defendants' motion for summary judgment dismissing the amended complaint.

Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party (Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919; Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416). An exception to this general rule was carved out by Weiner v. McGraw-Hill Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, which recognized that the presumption of at-will employment can be rebutted by evidence of a limitation by express agreement on the employer's unfettered right to terminate at will. Refusing to expand the Weiner holding into the implied contract category, the Court of Appeals has noted that post-Weiner plaintiffs alleging wrongful discharge have not fared well because of the explicit and difficult pleading burden imposed by Weiner (Sabetay v. Sterling Drug, supra, 69 N.Y.2d at 334-335, 337, 514 N.Y.S.2d 209, 506 N.E.2d 919). At issue on this appeal is whether plaintiff, who was hired without any fixed period of employment, submitted sufficient evidence of an express limitation on her employer's rights in an at-will employment to meet her burden as the opponent of a motion for summary judgment to dismiss her wrongful discharge cause of action.

While employed in a supervisory capacity by Albany Medical Center, plaintiff was recruited for the position of Director of Patient Services by Visiting Nurse Association (hereinafter VNA), the predecessor of defendant Visiting Nurse Association of the Capital Region Inc. During an interview with the Executive Director of VNA, plaintiff expressed concern about job security and was informed by the Executive Director that VNA's personnel manual created a six-month probationary period and that after completion of the six-month period plaintiff would become a permanent employee who could be fired for cause only. The written offer of employment from the Executive Director was accompanied by VNA's personnel manual and a procedure manual then in effect.

The personnel manual created a six-month "trial period" during which the employment relationship could be terminated by either party "without prejudice". Upon the successful completion of the "trial period", the employee was entitled to written confirmation of "full-time or part-time employment". The manual included a section entitled "Termination", with a subheading of "Dismissal" which provided that dismissal for unsatisfactory job performance must be preceded by certain procedures. The subheading also contained a provision which referred to dismissal for "illegal activities", but no other ground for dismissal was mentioned. The procedure manual contained a policy statement concerning disciplinary action and listed a five-step procedure. The fifth step provides that dismissal will be invoked only when all other problem-solving and disciplinary steps have failed.

Plaintiff alleges that she left her former employment and accepted the position with VNA in reliance upon what she viewed as an express limitation on VNA's authority to fire her at will. She served her six-month "trial period" and received written confirmation of her status as a "full-time employee". Some four years later, VNA terminated plaintiff's employment without following any of the procedures contained in the personnel manual and the procedure manual given to plaintiff when she was offered the position.

In support of their motion for summary judgment to dismiss plaintiff's wrongful discharge cause of action, defendants contend that the personnel manual given to plaintiff when she was hired and subsequent manuals in effect during her employment did not contain a specific provision which limited VNA's authority to fire plaintiff for just cause only. When the grounds for termination listed in a manual are not exhaustive and the manual neither provides that the procedures will be followed in all cases nor contains an express assurance that termination will be for cause only, the discharged employee has no cause of action for wrongful discharge (see, Novinger v. Eden Park Health Servs., 167 A.D.2d 590, 591, 563 N.Y.S.2d 219, lv. denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399). Also insufficient to state a cause of action are allegations of oral assurances that the employee...