Taliento v. Portland West Neighborhood Planning Council

• Decision Date: 29 August 1997
• Citation: 705 A.2d 696
• Parties: 13 IER Cases 407, 1997 ME 194 Neil TALIENTO v. PORTLAND WEST NEIGHBORHOOD PLANNING COUNCIL.
• Court: Maine Supreme Court

Page 696

705 A.2d 696

13 IER Cases 407, 1997 ME 194

Neil TALIENTO v. PORTLAND WEST NEIGHBORHOOD PLANNING COUNCIL.

Supreme Judicial Court of Maine.

Argued April 9, 1997.

Decided Aug. 29, 1997.

Glenn Israel, Peter Rubin (orally), Bernstein, Shur, Sawyer & Nelson, Portland, for Appellant.

Melissa A. Hewey, Daniel J. Rose (Orally) Drummond, Woodsum & McMahon, Portland, for Appellee.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

CLIFFORD, Justice.

¶1 Neil Taliento appeals from the judgment entered in the Superior Court (Cumberland County, Mills, J.), pursuant to a motion for a summary judgment, in favor of the Portland West Neighborhood Planning Council (Portland West) on his breach of employment contract claims. Taliento contends that the court erred by finding there is no issue of material fact whether Portland West's Personnel Policies altered his status as an employee who could be terminated at will (Count I); by finding he had no contractual right to an appeal process in which the president of the Board of Directors may cast a vote only to break a tie (Count II); by finding that oral promises by Portland West's Executive Director Peter O'Donnell did not create an employment contract for a definite period of time and thereby limit O'Donnell's ability to recommend his termination (Count III); and by finding no issue of material fact whether he was an intended third-party beneficiary of the federal Housing and Urban Development (HUD) grants that fund Portland West's YouthBuild Portland program (YouthBuild) and that he therefore did not have an employment contract for the grant's two-year duration (Count IV). We are unpersuaded by Taliento's claims and affirm the judgment.

¶2 Portland West is a neighborhood group that acts as an umbrella organization for a number of community programs funded primarily by federal, state, and local grants. In January 1990 Taliento was hired by Portland West as director of its Community Employment Project (CEP). He signed no employment contract and was not promised a specific duration of employment.

¶3 As a program director, Taliento was regularly involved in hiring and terminating staff, and was familiar with Portland West's Personnel Policies, including those stipulating that such decisions required the approval of the Board of Directors. The Policies contain no promises of continued employment or employment for a specific term, do not limit termination of employment to situations of just cause, and do not provide criteria for employee discipline or termination. Paragraph 11 of the Policies provides:

Termination: The Executive Director and the Program Director have the authority to recommend termination of an employee to the Personnel Committee only after documenting the problem; informing the employee and giving the employee a stated period to correct the situation. The employee may appeal any decision of the Personnel Committee to the full Board of Directors.

Executive Director Peter O'Donnell testified that in recommending the termination of another employee to the Personnel Committee later that year, he followed the Policies.

¶4 In 1994 Portland West applied for a grant from HUD to fund a new program, YouthBuild. Taliento helped write the application (which apparently ¹ listed him as program director), and that summer Portland West obtained the grant to fund YouthBuild for 18 months. Once the grant was awarded Taliento left CEP and became the YouthBuild director, but he signed no employment contract and there were no conversations concerning changes in his employment status. In December James Oliver was replaced as Executive Director by O'Donnell. In the spring of 1995 Taliento completed an application for a two-year renewal of the HUD grant. The application listed him as YouthBuild program director as well as all the other then current YouthBuild employees. O'Donnell admits that they intended for Taliento to continue as YouthBuild director for the duration of the grant. The grant was reviewed, and Taliento asserts that his salary as YouthBuild director was paid by it.

¶5 In October 1995 O'Donnell issued a positive, written annual performance evaluation for Taliento, saying that he met or exceeded expectations in every category. When the two men met about the evaluation, O'Donnell gave him the maximum raise of five percent and, by Taliento's account, told him that "as long as [he] was executive director of Portland West, [Taliento] could count on having a job here." O'Donnell has testified that he may have said, "Neil, as long as I'm around, I would like you also working here." One month later, however, O'Donnell recommended to the Personnel Committee that Taliento be terminated on account of his handling of a situation involving a youth in the YouthBuild program who was wanted by the police. Although O'Donnell testified that in recommending Taliento's termination he met the requirements of paragraph 11 of the Policies, it is unclear that he did so. The Personnel Committee of the Board of Directors voted to terminate Taliento based on O'Donnell's recommendation. Shortly thereafter, O'Donnell informed Taliento that he had been terminated, and that he should clean out his desk and leave immediately. Taliento exercised his right of appeal, appealing the termination to the full Board. Following a hearing, the Board denied Taliento's request for reinstatement by a 7-7 vote, with President Bryant casting the tying and deciding vote.

¶6 Taliento then filed the present complaint alleging four counts of breach of contract: failure to satisfy the Personnel Policies termination requirements (I), failure to adhere to established appeals practices (II), failure to honor the promise of continued employment allegedly made by O'Donnell (III), and failure to honor an implied two-year employment contract allegedly created by the HUD grant (IV). The court granted Portland West's motion for a summary judgment in its favor on all counts. This appeal is from the judgment.

¶7 Pursuant to M.R. Civ. P. 56(c), a court properly enters a summary judgment if there is no genuine issue as to any material fact and a party is entitled to such a judgment as a matter of law. We review the entry of a summary judgment for errors of law, viewing the evidence in the light most favorable to the party against whom judgment was entered. Lynch v. Ouellette, 670 A.2d 948, 949 (Me.1996). We undertake an independent review of the record to determine whether there is a genuine issue of material fact and if the moving party was entitled to a judgment as a matter of law. First Citizens Bank v. M.R. Doody, Inc., 669 A.2d 743, 744 (Me.1995).

¶8 Taliento contends that the court erred by entering a summary judgment in Portland West's favor on Count I because there is a dispute of fact whether Portland West's Personnel Policies created an employment contract terminable only pursuant to its express terms, thereby altering his status as an employee who could be terminated at will. In particular, Taliento argues that Executive Director O'Donnell was bound to follow certain procedures pursuant to paragraph 11 of the Policies if he wanted to initiate a termination of Taliento, and that the language of paragraph 11 restricted Portland West's right to discharge Taliento. He claims that the paragraph's plain language required O'Donnell to document the performance problem at issue, inform Taliento of the problem, and give him "a stated period to correct the situation." Taliento also argues that O'Donnell's compliance with the graduated termination procedure set forth in paragraph 11 is a disputed issue of fact. He contends, therefore, that the existence of genuine issues of material fact precluded a summary judgment for Portland West on this count of his complaint. We disagree.

¶9 "In Maine, it has long been the rule that a contract of employment for an indefinite length of time is terminable at the will of either party." Larrabee v. Penobscot Frozen Foods, 486 A.2d 97, 99 (Me.1984). Parties may provide that an employer is not free to discharge an employee without cause, but the intent to do so must be clearly stated. Id. at 99-100. Such a restriction cannot be implied from the employment contract. Id. at 99. Rather, the only exception to the employer's common law right to discharge an employee at will is a contract that "expressly restrict[s] [such a right] and clearly limit[s] the employer to the enumerated method or methods of terminating the employment." Bard v. Bath Iron Works Corp., 590 A.2d 152, 155 (Me.1991) (citing Libby v. Calais Reg'l Hosp., 554 A.2d 1181, 1183 (Me.1989)).

¶10 In Libby, we made clear that language in an employee handbook (a document similar in relevant respects to a personnel policy), providing a method of discharge and implying that discharge of an employee will be only for cause, is insufficient to restrict the employer's common law right to terminate the employment. Libby, 554 A.2d at 1183.

¶11 In this case, as in Libby, the personnel policy merely provides a procedure to be followed, a method of discharging an employee. It does not "clearly limit [Portland West] to that method of terminating [Taliento's] employment, and does not expressly restrict [Portland West's] right to discharge an employee." Id.

¶12 Moreover, Taliento's claim is based on O'Donnell's failure to fully comply with some of the procedural provisions of paragraph 11 of the Personnel Policy. Taliento was discharged, however, not by O'Donnell, but by the Personnel Committee. The restriction in paragraph 11 is on the authority of the Executive Director and the Program Director and does not affect the authority of the Personnel Committee, nor that of the Board of Directors. Taliento also exercised his right to appeal to the Board of Directors and was afforded a full hearing. The failure of that appeal is insufficient reason to for us to discard or ignore the law that is clear and...