Winspear v. Boeing Co.

• Decision Date: 08 August 1994
• Docket Number: No. 32167-6-I,32167-6-I
• Parties: Compton D. WINSPEAR, Appellant, v. The BOEING COMPANY, Respondent.
• Court: Washington Court of Appeals

Page 870

75 Wn.App. 870

880 P.2d 1010

Compton D. WINSPEAR, Appellant, v. The BOEING COMPANY, Respondent.

No. 32167-6-I.

Court of Appeals of Washington,

Division 1.

Aug. 8, 1994.

Publication Ordered Sept. 28, 1994.

Jeffrey Lowell Needle, Seattle, for appellant.

Jeffrey Alan Hollingsworth, Perkins Coie, Seattle, for respondent.

SCHOLFIELD, Judge.

In this wrongful discharge case, Compton D. Winspear appeals the order granting summary judgment to the Boeing Company and dismissing his claims of public policy violation, discrimination, and breach of an implied employment agreement. He argues that there were factual issues of whether Boeing's articulated reason for firing him was a pretext, whether he relied on a promise from Boeing's human resource department and, if so, whether that promise and his reliance created an implied employment agreement which Boeing breached. We affirm.

Compton Winspear began working for Boeing as an engineer in 1969. By 1989 he was one of Boeing's engineering managers working on the B-2 Stealth Bomber project for the United States Air Force. His position required him to have basic security clearance plus "program access", which is a more stringent level of security clearance.

In March 1989, Winspear was arrested and the Snohomish County prosecutor charged him with two counts of indecent liberties and two counts of second degree rape of a child. He was released on bail to await trial. According to his affidavit, Winspear promptly notified two of his supervisors about the charges after his arrest. He also reported the arrest and the charges to a Boeing personnel manager, David Geidt.

In August 1989, Winspear's prosecution resulted in a mistrial. The prosecutor offered to drop all the felony charges if Winspear pleaded guilty to a misdemeanor charge of fourth degree assault. ¹ According to Winspear, he asked Geidt before accepting the plea bargain whether his employment would be affected if his plea resulted in a jail sentence. Winspear alleges that Geidt told him he would not be fired if he pleaded guilty to a misdemeanor, and he could use his 4 weeks of outstanding vacation and take an unpaid leave of absence if necessary without losing his job. In reliance on those assurances, Winspear pleaded guilty to the misdemeanor charge on December 1, 1989. Sentencing for that conviction was scheduled for March 1990.

On January 30, 1990, a Boeing security investigator met with Winspear and Richard White, Boeing's Manager of Security for the B-2 Program. Winspear revealed the history of the charges and his guilty plea to the misdemeanor charge. He signed a written statement indicating he knew he was obligated to tell Boeing security about his arrest but he elected not to "because of embarrassment". On February 1, 1990, Boeing terminated Winspear's employment. According to Winspear, Geidt informed him he was discharged for child molestation. Winspear subsequently served 72 days of his 120-day jail sentence.

In May 1991, Winspear filed a wrongful discharge action against Boeing, alleging that Boeing violated public policy by intentionally discharging him because of his guilty plea and/or his arrest for the sexual assault charges. Boeing's answer denied Winspear had notified anyone about the arrest or the charges, denied the discharge was due to Winspear's arrest or guilty plea, and denied any public policy violation. Boeing admitted only that Winspear "was terminated from his employment because of unacceptable conduct."

Boeing subsequently moved for summary judgment, arguing that Winspear was employed by Boeing at will, he had pleaded guilty to fourth degree assault, and Boeing policy provides that employees who commit penal offenses may be disciplined, including by discharge. Boeing's motion framed the issue as whether summary judgment was warranted because (1) Winspear based his public policy claim only on WAC 162-16-060 and that regulation neither prohibits the discharge of at-will employees nor creates a claim independent of RCW 49.60, and (2) Winspear failed to report his arrest to Boeing security as required, and his extended leave of absence while in jail would have been an independent basis for dismissal. Winspear opposed Boeing's motion and argued that he only pleaded guilty to the misdemeanor because of Geidt's assurances to him. The trial court denied the motion.

Winspear then amended his complaint to allege that Boeing's action discriminated against him in violation of RCW 49.60. He later filed a second amended complaint alleging his termination violated an implied contract because he had relied on Geidt's statements, and he would not have pleaded guilty if he had known it would result in his termination.

Boeing denied those additional allegations and filed a second motion for summary judgment asking the court to dismiss all three of Winspear's claims in his second amended complaint: the alleged public policy violation, the discrimination claim, and the implied contract claim. In that motion, Boeing alerted the trial court in a footnote that its previous motion for summary judgment challenging Winspear's public policy claim had been denied. Boeing also explained that it filed its second motion after Winspear had amended his complaint twice. Boeing asserted that Winspear still failed to state a claim for a public policy violation (this time on the ground that even if WAC 162-16-060 did state a public policy, Boeing complied with the regulation), he failed to state a claim for discrimination, and no consideration supported Winspear's implied contract claim.

Winspear opposed Boeing's motion, arguing that consideration is not necessary for an implied employment agreement under Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). He also asked for CR 11 sanctions against Boeing on the grounds that Boeing's second summary judgment motion duplicated its first one and Boeing's counsel intentionally failed to discuss Thompson as the controlling law. In response, Boeing distinguished the two motions and distinguished Thompson.

After a hearing, the trial court granted Boeing's second summary judgment motion. Winspear appeals.

I. IMPLIED EMPLOYMENT CONTRACT UNDER THOMPSON

We first decide whether summary judgment was proper as a matter of law because the parties did not have an implied contract under Thompson. ² Winspear argues that under Thompson an employer's oral promises, as well as policies and procedures set out in written employment manuals, can form an implied employment contract modifying an at-will employment agreement. Boeing maintains that Thompson 's exception to the common law rule regarding at-will employment agreements applies only to written employment manuals.

In reviewing a grant of summary judgment, an appellate court places itself in the trial court's position and views the evidence and all reasonable inferences from it in the light most favorable to the nonmoving party. Swanson v. Liquid Air Corp., 118 Wash.2d 512, 518, 826 P.2d 664 (1992). Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56(c); Del Guzzi Constr. Co., Inc. v. Global Northwest Ltd., 105 Wash.2d 878, 882, 719 P.2d 120 (1986). Summary judgment should be granted only if reasonable persons could reach but one conclusion from all the evidence. Swanson, 118 Wash.2d at 518, 719 P.2d 120.

Under the common law, the "employment at will" doctrine permitted either the employer or the employee to terminate an employment relationship without liability. Thompson, 102 Wash.2d at 225, 685 P.2d 1081. In Thompson, the Supreme Court modified the common law doctrine in three ways. First, the court adopted a contractual approach under which

the employer's right to terminate an at will employee can be contractually modified and, thus, qualified by statements contained in employee policy manuals or handbooks issued by employers to their employees. Under this approach the requisites of contract formation, offer, acceptance and consideration are necessary predicates to establishing that policies in an employment manual are part of the employees' original employment contract or part of the employment contract as modified by the parties.... We agree with ... cases that [hold] an employee and employer can contractually obligate themselves concerning provisions found in an employee policy manual and thereby contractually modify the terminable at will relationship.

(Citations omitted.) 102 Wash.2d at 228-29, 685 P.2d 1081.

Second, the court held that the common law rule could be modified by policies announced in employee handbooks even without the traditional contract elements:

Independent of [the above] contractual analysis, however, we hold that employers may be obligated to act in accordance with policies as announced in handbooks issued to their employees. When the employment relationship is not evidenced by a written contract and is indefinite in duration, the parties have entered into a contract whereby the employer is essentially obligated to only pay the employee for any work performed. In this contractual relationship, the employer exercises substantial control over both the working relationship and his employees by retaining independent control of the work relationship. Thus, the employer can define the work relationship....

However, absent specific contractual agreement to the contrary, we conclude that the employer's act in issuing an employee policy manual can lead to obligations that govern the employment relationship....

We are persuaded that the principal, though not exclusive, reason employers issue such manuals is to create an atmosphere of fair treatment and job security for their employees.

While an employer need not establish personnel...