Yartzoff v. Democrat-Herald Pub. Co., Inc., DEMOCRAT-HERALD

• Citation: 281 Or. 651,576 P.2d 356
• Decision Date: 28 March 1978
• Docket Number: DEMOCRAT-HERALD
• Parties: , 115 L.R.R.M. (BNA) 5061 Elizabeth YARTZOFF, Appellant, v. ThePUBLISHING CO., INC., Respondent.
• Court: Supreme Court of Oregon

Page 356

576 P.2d 356

281 Or. 651, 115 L.R.R.M. (BNA) 5061

Elizabeth YARTZOFF, Appellant, v. The DEMOCRAT-HERALD PUBLISHING CO., INC., Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 9, 1978.

Decided March 28, 1978.

Joseph Morray, Corvallis, argued the cause and filed a brief for appellant.

James C. Goode, of Goode, Goode, Decker & Beckham, P. C., Albany, argued the cause and filed a brief for respondent.

Before DENECKE, C. J., TONGUE and LINDE, JJ., and THORNTON, J. Pro Tem.

TONGUE, Justice.

This is an action by an employee against her employer for damages for wrongful discharge. Plaintiff appeals from a summary judgment for defendant. We reverse.

Plaintiff's second amended complaint alleged that on January 24, 1976, she was hired by defendant as a proofreader; that the terms of her employment were set forth in a letter from defendant's production manager, dated January 26, 1976, and in a "handbook for new employees" delivered to her on or about the same date which stated in part as follows:

"Initial Probationary Period: Each new employe will be expected to work under probation for a minimum of three months and a maximum of six months. During this period, the new employe will be encouraged to learn his job and become a member of the Democrat-Herald team. However, if he cannot properly handle his job or cannot become a productive member of the team, he can be terminated at any time during this period.

" * * *era

"Termination: The Democrat-Herald is committed to a policy to make every effort to be as fair and considerate as possible in the matter of terminating employes. When an employe's work is unsatisfactory because of lack of ability or failure to fulfill the requirements of his position, he will be counseled about the problem. Department heads have the responsibility to work diligently with such an employe to rectify the situation. If the problem is one of a mismatch between the employe's abilities and the position, an effort will be made to find a more suitable position in which to demonstrate his abilities to succeed. If such action fails, the employe will be advised on the need for termination in ample time to permit him to adjust to the situation. In most cases, the following procedure will take place:

"1. The employe will receive a letter from his department head detailing the problem, and suggesting ways to solve it.

"2. If the problem persists, the employe will be sent home for one day with pay.

"3. If the problem continues, the employe can then be terminated.

"An exception is made in the case of gross misconduct where immediate action to terminate may be taken."

The complaint also alleges that on April 19, 1976, she was discharged without warning and without cause despite the fact that she had "demonstrated her ability to handle her job and to become a productive member of the team." Attached to the complaint as an exhibit was a copy of the letter of January 26, 1976, stating, among other things, her duties and rate of pay and that "(n) ormal probationary period * * * is 3 months."

Defendant's motion for summary judgment was supported by the affidavit of its attorney that:

"According to Plaintiff's second amended complaint, and the other undisputed facts of the case, it is hereby represented that the evidence will be that on January 24, 1976, Plaintiff was hired to work as a proof reader under a probationary period of time of three to six months.

"Plaintiff did not have an employment contract as the terms of hiring were verbal. Defendant had printed and did give to Plaintiff, two days or more after she was hired, an informational handbook. Portions of that publication are quoted in Plaintiff's second amended complaint.

"Defendant discharged Plaintiff on April 19, 1976, 81 days after her initial employment and less than three months thereafter."

Plaintiff then filed an affidavit in opposition to defendant's motion stating that:

"1. * * *

"2. On January 24, 1976, Thomas Stratton verbally agreed to hire me and I verbally agreed to work for the Albany Democrat-Herald as proofreader. The terms of our agreement were those stated in the letter of January 26, 1976 from Thomas Stratton to me, a copy of which letter is attached to the Second Amended Complaint as Exhibit 'A'.

"3. On or about January 26, 1976 I received from Thomas Stratton at the Albany Democrat-Herald office, the printed publication entitled 'Let's Get Acquainted: A Policy Handbook For New Employees: Albany Democrat-Herald' containing the excerpts set forth in paragraph II of my Second Amended Complaint.

"4. I began working for defendant on January 26, 1976 and continued working until I was discharged on April 19, 1976 without cause, by Thomas Stratton.

"5. Throughout my employment I performed my duties in a manner that demonstrated my ability to handle my job and to become a productive member of the team of the Albany Democrat-Herald.

"6. At no time prior to my discharge on April 19, 1976 was I given any warning that my work was considered not satisfactory and that termination was being considered.

"7. As a result of defendant's breach of our agreement I have suffered damages in the form of lost wages in the amount of $2,600.00 and incidental expenses while seeking other employment in the amount of $100.00."

In considering plaintiff's contention that on this record the trial court erred in entering a summary judgment for defendant we start with the recognized rule that the entry of a summary judgment is proper only when there is no genuine issue as to any material fact and that in an appeal from a summary judgment the record must be reviewed in the light most favorable to the party opposing the motion. See ORS 18.105(3) and Grove Brick v. Strickland, 277 Or. 81, at 87-88, 559 P.2d 502 (1977), and authorities cited therein. As stated in 6 Moore's Federal Practice 56-469, P 56.15 (1976):

" * * * in ruling on the motion all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion (citing many cases)."

We also start with the recognized rule that generally, in the absence of a contract or statute to the contrary, an employer may discharge an employee at any time and for any cause. Nees v. Hocks, 272 Or. 210, 216, 536 P.2d 512 (1975).

Defendant first contends that the letter of January 26, 1976, stating only that the "normal probationary period" was three months, did not limit defendant's right to discharge plaintiff at any time during that period and for any cause. Taking that letter alone, and in the absence of any other evidence, we might not disagree. It is quite possible, however, that at the time of trial evidence might be offered as to the meaning of the words "normal probationary period," as understood and intended by the parties, or to show that the intended meaning of those terms was as set forth in the handbook. In any event, the disposition of this contention is not decisive, for reasons that will appear.

Defendant next contends that the statements in the handbook relied upon by plaintiff also do not impose any such limitation because it appears from plaintiff's affidavit that "(t)he terms of our agreement were those stated in the letter of January 26, 1977 (sic)" which, as previously held, did not limit defendant's right of discharge, and made no reference to the handbook. We disagree with that contention.

As previously noted, plaintiff's affidavit goes on to state that "on or about" the same day, January 27th, she also received the "handbook" containing the above-quoted statement. As also previously stated, we must review the record in the light most favorable to plaintiff. Viewed in that light, we believe that if this case were submitted to a jury, it could reasonably infer from the facts stated in plaintiff's affidavit, when taken as a...