Trabing v. Kinko's, Inc.

• Decision Date: 22 November 2002
• Citation: 57 P.3d 1248,2002 WY 171
• Parties: Kathleen TRABING, Appellant (Plaintiff), v. KINKO'S, INC., Appellee (Defendant).
• Court: Wyoming Supreme Court

57 P.3d 1248

2002 WY 171

Kathleen TRABING, Appellant (Plaintiff), v. KINKO'S, INC., Appellee (Defendant).

No. 02-3.

Supreme Court of Wyoming.

November 22, 2002.

John B. "Jack" Speight and Amanda Hunkins of Speight, McCue & Associates, P.C., Cheyenne, WY, Representing Appellant. Argument by Ms. Hunkins.

Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, WY, Representing Appellee. Argument by Mr. Scott.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Appellant Kathleen Trabing appeals the district court's order of summary judgment, which disposed of her claims for breach of implied-in-fact contract, promissory estoppel, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress.

[¶ 2] We affirm.

ISSUES

[¶ 3] Trabing offers the following issues for our analysis:

A. Do genuine issues of material fact exist which preclude summary judgment in favor of Kinko's on the issue of whether an implied-in-fact contract existed by virtue of the Kinko's Co-worker Handbook?

1. Does the Employment Agreement executed on the day Trabing began work for Kinko's fail for lack of consideration as it pertains to provisions negating its Co-worker Handbook's promises of job security?

2. Is it bad public policy to allow employers to escape contractual liability for handbook provisions by simply distributing employee handbooks prior to date employee commences working?

B. Do genuine issues of material fact exist regarding Trabing's alleged "actual knowledge" of the at-will provisions of the Handbook as it pertains to her be[ing] "sufficiently informed" that her employment was at-will?

C. Do genuine issues of material fact exist regarding Kinko's course of conduct with respect to its emphasis on "Positive Discipline" as a mandatory process such that it negated its Co-worker Handbook disclaimer and moreover the presumption of at-will employment?

D. Do genuine issues of material fact exist regarding whether Kinko's "Positive Discipline" process and course of dealing constituted specific promises to Trabing upon which she detrimentally relied?

E. Do genuine issues of material fact exist as to whether a special relationship existed between Trabing and Kinko's and also as to whether Kinko's then breached the implied covenant of good faith and fair dealing by terminating Trabing's employment based on a few disgruntled employees' comments?

F. Do genuine issues of material fact exist as to whether Trabing suffered severe emotional distress when Kinko's terminated her solely on the basis of her employees' anonymous and unsubstantiated comments during a time in which she was grieving over the recent loss of her mother?

Appellee Kinko's states its issue as follows:

Was summary judgment properly granted by the District Court upon Appellant Trabing's claims for breach of implied in fact contract; promissory estoppel; breach of the covenant of good faith and fair dealing; and the intentional infliction of emotional distress?

FACTS

[¶ 4] Trabing began working for Kinko's as a branch manager of the Laramie, Wyoming store on December 21, 1992. She signed an Employment Agreement on that date, which provided in part:

Kinko's and the co-worker understand that the co-worker is employed at will, which means that the co-worker or Kinko's may terminate the employment at any time, with or without cause and with or without advance notice.

A few days earlier, either on December 18 or 19, 1992, it is unclear what the handwritten numeral is, Trabing signed a Co-Worker Agreement, in which she acknowledged that she had received the Co Worker Handbook. The handbook outlined Kinko's policies and procedures, which included the company's positive discipline system. The handbook also contained an employment-at-will provision.

[¶ 5] During the nearly eight years that Trabing was employed by Kinko's, she received several "above-standard" performance evaluations. In 1998, however, the store's sales revenues began to decline, and Trabing experienced difficulties maintaining good working relationships with her subordinates. Her Management Effectiveness Survey (MES) scores, which are anonymous evaluations the manager's staff completes regarding the manager's capabilities and management style, got consistently worse. The surveys also contained numerous critical comments regarding the way Trabing performed her job and treated her employees. Trabing admits that she was having difficulties during this time, but attributes her problems in part to the fact that her mother was fighting and ultimately lost a long battle with cancer.

[¶ 6] Concerned about Trabing's recent low MES score, Trabing's regional manager and a Kinko's human resources specialist traveled to the Laramie store. They placed Trabing on decision-making leave, during which time Trabing was instructed to devise a plan for improving her performance. During those three days, Trabing made various attempts to contact her regional manager for assistance in drafting her plan. When she finally got in touch with him, he advised Trabing that he could not discuss the situation with her. At the conclusion of the three-day period, the three met again. Trabing had not drafted a plan for improvement, and she was terminated at that time.

[¶ 7] Trabing filed suit, asserting claims for breach of implied-in-fact contract, promissory estoppel, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Kinko's moved for summary judgment. The district court granted Kinko's motion, and this appeal followed.

STANDARD OF REVIEW

[¶ 8] Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, ¶ 10 (Wyo.2001); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense that has been asserted by the parties. Williams Gas Processing-Wamsutter Co. v. Union Pacific Resources Co., 2001 WY 57, ¶ 11, 25 P.3d 1064, ¶ 11 (Wyo.2001). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Scherer Constr., LLC v. Hedquist Constr., Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001). We do not accord any deference to the district court's decisions on issues of law. Id.

DISCUSSION

A. Implied-In-Fact Contract

[¶ 9] Trabing first contends that summary judgment was inappropriately granted to Kinko's because genuine issues of material fact exist regarding whether an implied-in-fact contract had been formed by virtue of Kinko's Co-Worker Handbook. She maintains that the Co-Worker Handbook created an implied-in-fact contract whereby termination could occur only for cause and only by following the positive discipline process. Kinko's insists that an implied-in-fact contract did not exist because Trabing signed an express, written employment agreement when she began her employment on December 21, 1992.

[¶ 10] In Wyoming, employment is presumed to be at will. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); Bear v. Volunteers of America, Wyoming, Inc., 964 P.2d 1245, 1250 (Wyo. 1998). This presumption may, however, be modified by either an express or implied-in-fact contract. Id.

The contract of employment is created by either an express contract or a contract implied in fact. Express contracts are ones in which the terms are declared by the parties either in writing or orally at the time the contract is formed....

The implied in fact contract of employment arises from a mutual agreement and intent to promise which is found in the acts or conduct of the party sought to be bound. Contracts of employment which are found from employee handbooks or policies are implied in fact contracts. Both express and implied in fact contracts of employment are enforceable to the same degree.

Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216-17 (Wyo.1994) (citations omitted).

[¶ 11] On December 18 or 19, 1992, two or three days before she began work, Trabing received a copy of the employee handbook. The provisions of the handbook implied cause was required for termination. Although the handbook contains provisions stating it is not intended to create a contract and employment is at will, Kinko's concedes these disclaimers are not sufficiently conspicuous. Absent any other writings or representations prior to beginning employment, a question of fact would exist as to whether the handbook creates an implied contract altering the presumption of at-will employment and requiring cause for termination. However, on December 21, 1992, the day she began work, Trabing was given a copy of the employment agreement which provided as follows:

Kinko's and the co-worker understand that the co-worker is employed at-will, which means that the co-worker or Kinko's may terminate the employment at any time, with or without cause and with or without advance notice....

...

I understand that this agreement constitutes the full and extent of the agreement between myself and Kinko's regarding the terms of my employment. I understand that Kinko's will not be bound by any oral statements or promises that are inconsistent with this agreement and this agreement can only be modified or amended in writing by an authorized representative of the Company.

[¶ 12] Trabing signed the agreement, acknowledging that:

I have read and understand this Employment Agreement and agree to the terms and conditions contained herein. I

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