Bauer v. American Freight System, Inc.
422 N.W.2d 435
S.D.
1988
Check Treatment

*1 portion of his written confession re- confi- bodies would be regarding the dead having polygraph to another examination. Berg recall ferred did not Sheriff dential. First, way what, to determine if The trial court we have any such assurance. made State, any, impact portion that of the statement favor of the conflict in that resolved Further, holding upon jury. had its admission was not clear- my view such totality to supra. clearly seems coincide with the Albright, ly erroneous. strategy.

of Satter’s and Hackett’s overall Counsel (c) Assistance failing if Even Hackett erred to make Ineffective motion, I am convinced such a transcript of having reviewed After oversight to did not rise the Strickland trial, I hearing corpus the habeas earlier, As total is- standards. stated repre that Satter was not am convinced jury simply sue was self-defense and Unfortu by counsel. ineffective sented buy it. did not living longer nately, Attorney Hackett view, my he did a defend himself. to Attorney repre- I conclude that Hackett’s at trial job representing Satter laudable anything but causal. Hack- sentation was asser I Satter’s appeal. believe objections, vigorouly raised ett of counsel of ineffective assistance tions pre- self-defense claim and presented the merit. The United States Su totally lack all meritorious issues. served Washington, preme Court Strickland v. asserting by that it I conclude would 668, 104 80 L.Ed.2d S.Ct. 466 U.S. require a retrial of injustice manifest employ (1984), set forth the standard defendant, being prop- case. The examining an ineffective assistance when rights, to the erly of his admitted advised claiming such must A claim. defendant he shootings yet claimed that did so show attorney has after his self-defense. Now was deficient. performance that counsel’s died, collaterally attempts to attack the he requires showing that counsel made This grounds conviction on a number counsel was not serious that errors so my not meritorious. view are guaranteed functioning as the ‘counsel’ corpus re- denying habeas Amendment. by the Sixth defendant affirmed. lief should be Second, show that must the defendant performance prejudiced the the deficient I authorized state am requires showing that defense. This WUEST, C.J., joins in this dissent. so as to errors were serious counsel’s trial, deprive a fair the defendant result is reliable.

trial whose 687, 104 L.Ed.

466 U.S. at S.Ct. at 698.

2d argument is that Hack- principal

Satter's suppress the state- BAUER, move to ett failed to Plaintiff James A. object Hackett did ments and confessions. Appellant, but used the con- to the statement at trial claim. support the self-defense fession to SYSTEM, INC., FREIGHT AMERICAN statements This offer of Satter’s written Appellee. Defendant legit- Hackett’s part of Satter’s and was a No. 15809. strategy to show imate trial tactics is not It killed self-defense. that Satter South Dakota. Supreme Court of second-guess function to this court’s 20, 1987. Nov. on Briefs Considered nor to substi- decisions of counsel tactical April Decided theory of defense. Jibben tute its own State, 343 N.W.2d 788 was defi- argues that Hackett

Satter also to excise he did not seek

cient because

ment motion and Bauer appeals. We af- firm.

FACTS began Since his with Freight American in 1977 he transferred several times and had repre- been a sales sentative and manager. sales At the time he was terminated he was in manage- position level terminal man- ager/sales manager Rapid City, South Dakota terminal. He was within eighteen being months of fully vested in Freight’s American Retirement Income Se- curity Program. Bauer did not have an individual written contract Freight. with American At the time of Bauer’s termination Amer- ican had an manual that many personnel set out policies. The fol- lowing sections of that manual are relevant appeal: this CODE OF CONDUCT Every organization must have stan- on-the-job dards for behavior. Violation Company’s Common sense rules of personal conduct result discharge include, action or to, following: but are not limited perform assigned 5. Failure to or re- quired satisfactorily. Insubordination. absence; 7. Excessive tardi- ness. You are an company of a Wayne Banks, Johnson, F. Gilbert of performing public Any service. mis-

Johnson, Huffman, P.C., Colbath & Rapid upon conduct which reflects discredit City, plaintiff appellant. you, upon also reflects discredit the Com- Hickey Bangs, McCullen, Michael M. pany.

Butler, Foye Simmons, Rapid & City, for appellee.

defendant and PUNCTUALITY penalized You will be MILLER, (on reassignment). Justice through Tardiness, pay. loss of like ab- (Bauer) senteeism, James Bauer brought your detracts from value as a wrongful against team, termination action working poor member of a and is a employer, Inc., System, work habit. A record of excessive tardi- (American Freight) after he was appraising your terminat- ness will be a factor ed in November 1985. The trial court dependability company, and value to the granted and, summary judg- proper warning your su- genuine issues of fact. in termination of material SDCL can result pervisor, 6-56(c); Trapp Pacific, v. Madera employment. your 15 - Inc., cit (S.D.1986) 390 N.W.2d ing Deering, Nemec v. EMPLOYER EXPECTATIONS (S.D.1984); Caneva Miners and Mer Bank, (S.D. chants company with its relationship of *3 1983). moving par The burden is on the the firmly is based on founda- employees ty clearly genu is to show that there no just equitable and play of fair and tion fact, ine issue of material and the evi dealings.... favorably to dence must be viewed most 1985, Freight em- In an American June thus, nonmoving party; the reasonable company car at a ployee Bauer’s observed against doubts should be resolved the during working pool hall hours over local moving party. remedy is extreme and fall. This course of the summer the it is not as for intended a substitute began keep a employee a co-worker to Trapp, 562; Wil trial. 390 N.W.2d at observations, diary dis- diary of the Ry. v. son Great Northern 83 S.D. pool the hall that Bauer was at closed 212, (1968). 21 N.W.2d working thirty during approximately hours genuine issue of material fact When eight-week They period. re- times an case, legal questions exists in a the supervisors who ported to Bauer’s properly by summary judg be decided inquiries and who observed made further v. Kenwel-Jackson Hamaker ment. during pool the hall vehicle at Bauer’s Mach., Inc., 387 N.W.2d 515 (S.D.1986). working during sup- he hours times was 15-6-56(c). See also SDCL Later, posed making to sales calls. only genuine we affirm if there are supervisors Bauer he met with when legal of fact and the issues material spending an “inordinate” admitted to questions correctly have been decided. during pool hall amount of time at the Here, Trapp, supra. the trial court was working attend- hours and that he was not questions mixed of fact confronted with ing company business. Therefore, summary judgment law. improper.... by then fired. A form used Bauer was ter- indicated Bauer was Gordon, 801, 803-4 Bego “poor In performance.” for minated work Intern., v. Tenne Inc. (S.D.1987); Groseth manage- depositions, American co, Inc., 410 N.W.2d 159 Bauer’s con- characterized variety including ways “not duct HANDBOOK EMPLOYEE time,” working,” “abusing company “mis- Although out numer- Bauer’s brief sets time,” performance,” “poor use re- specifically provisions, he ous handbook “stealing company,” and time from the in the promises contained lies on three job responsi- “failing properly fulfill his employment con- part the bilities.” (1) for exces- terminate promise to tract: warning proper sive

ISSUES (2) supervisor; disciplinary action from a genuine issues of fact Whether material only after viola- place would take employment at over whether Bauer’s arise sense “common tion of certain enumerated by (3) the conduct;” will was altered personal rules created, and, if whether the a contract was company with its relationship of contract was breached. on foundation firmly ployees is based dealings. equitable just play and

of fair SUMMARY JUDGMENT requires case disposition of this A cases deal- last two analysis our Summary judgment a close is authorized Osterkamp issue, ing i.e. with this when movant is entitled Osterkamp v. Alkota Hopes, are no as a matter of law because there infra. Inc., (S.D.1983), (Minn.1986), Mfg. citing Pine River State 332 N.W.2d 275 Mettille, be Bank (Minn. termination of reversed a N.W.2d 622 1983); see Hunt v. I.B.M. Mid American clearly indicated that the cause the record Union, disciplinary action Employee’s Federal Credit required procedures However, Oster (Minn.1986); were utilized. see also not fn. 8 kamp, contained Unjust L. P. Borowsky, Dismis Larson & including procedural sal, provisions, mandatory 8.02 fn. 9 § requirements, specific affirmations alleged prom Nor does the second specific of “corrective disci endorsements solely ise based the handbook’s “Code of Clearly plinary” under measures. provide any procedure Conduct” clear Osterkamp, facts in the handbook was termination, as the did in the contract. Osterkamp provi handbook. Because spectrum At other end of the sions in code of are conduct a non-ex *4 Hopes Light, & v. Black Hills Power 386 clusive list of common rules sense of be Hopes, (S.D.1986). N.W.2d 490 held havior lead action that can employment existed an termina- that there or discharge, they clearly preserve Ameri company’s perform- ble at because the will right Freight’s discharge employ can an procedure dealt appraisal ance with Idaho, Inc., Jones EG & G ee-at-will. employee performance develop- (Idaho 1986); 111 726 Idaho P.2d 703 provisions. had ment and no termination Chin v. American Tel. & Tel. 96 Misc. Freight’s is more de- American handbook (1978). 2d N.Y.S.2d 410 737 More Hopes, the one tailed than we considered over, provisions general yet explicit substantially it is than the less any procedure do not contain Osterkamp. merely one dealt It is with terminating employee, for an unlike the (entitled general a information booklet very specific provisions Oster applied Information) Company “Your also, kamp. Hopes, supra. —General See expectations, employer which outlines enu- It is whether Bauer was ter- immaterial conduct, provides merates code of an a tardiness, minated for or excessive habitual regarding per- assortment information satisfactorily perform assigned failure to general company poli- sonnel matters work, insubordination, required or exces- mandatory provisions cies. There are no absence, sive or whatever. procedure. specified no just does not limit to a cause Hopes, dispute As in there no that any standard and does not contain termi- employment no Bauer had contract and procedures guidelines nation which specified employ- there no of his term agrees they states or Although general pol- ment. a it contained part any does will follow. It not become icy regarding terminating statement employment agreement does it nor alter ployees poor punctuality, for employee Bauer’s status an will. specific has no termi- Affirmed. provisions proce- nation and outlines dures for termination. C.J., J., WUEST, MORGAN, alleged promise ANDERSON, Judge, concur. Circuit employee handbook about rela J., SABERS, dissents. being just tions play based on “fair equitable dealings,” general to confer is too ANDERSON, sitting Judge, Circuit any specific rights on a breach of which HENDERSON, J., disqualified. for contract claim can be based. “General SABERS, (dissenting). Justice policy statements of a hand [in respectfully majority I dissent require meet from do not the contractual book] opinion’s is immaterial ment of offer to create an statement that it an [sufficient Eq Lewis for whether was terminated exces- contract].” Soc., uitable Assurance sive or tardiness or some other Life conflicting provisions given these are to be held that where an This court has reason. preserves one an effect —the the at-will specifies that em employer’s handbook concept specifically pro or the one just discharged without not be ployee will warning employee for a an can vides before positively deutils the handbook cause and terminated for tardiness. provides “[C]ourts for termination which procedure provisions per have held that whether of a notices, employer warning any violation sonnel manual should be considered support an action provisions will of these employment contract for the an is matter contract. Os of an for breach finding it jury, necessary to artic without Inc., 332 N.W.2d Mfg., Alkota terkamp v. holding.” L. ulate a doctrinal basis so Unjust Borowsky, P. Dismissal Larson & hand- Bauer asserts However, general 8.02 rules § promise terminate for book contains interpreting provide written contracts proper warn- excessive interpreted if a must be contract supervisor. Bauer received ing from a writing any itself and not from dis summary judg- warning. surrounding circumstances, ques puted to the more favorable he is entitled is one of law for the court and not the tion conflicting specific and more Corbin, (1960); Contracts § jury. 3 handbook. (3d on Contracts ed. Williston § 1961). In v. IBM Em Hunt Mid America Provisions in Handbook Conflict Union, ployees Federal Credit *5 from con- Employer’s promise arises two 853, (Minn.1986), the court held that regarding flicting provisions the handbook only the the manual was where discharge on tardiness. based process action, wrongful discharge for the basis “Punctuality” provision provides in rel- of the a and effect manual was the nature tardiness, [Ejxcessive ... part, evant “... See the court. question of construction for supervi- proper warning your after Cooperative v. Panhandle also Johnston sor, your of can result Ass’n, (1987) 732, 408 Neb. added) (emphasis ployment.” action, declaratory judgment the (In a on the provisions, Conduct” agree “Code of salary of a written question whether hand, part, provide in relevant “Vio- other supported the exist a handbook ment and common sense Company’s the lation of employment contract “for-cause” ence of a personal conduct result court); rules of Lewis of for the question law was discharge in- or action the Equitable Assurance Soc. of Life to, clude, are not (Simo- follow- but limited the U.S., 389 N.W.2d 876 (Minn.1986) (4) assigned perform ing: J., Failure to dissenting ... nett, J., Coyne, and (5) satisfactorily^] Insubor- required J., Kelley, dis concurring part, and absence; (6) Excessive senting). dination^] added) (emphasis Sections tardiness....” allegations of In Bauer’s case remotely (4), (5), (6) are the ones arguments in his briefs complaint Thus, the “Punc- Id. related to this case. of for his cause the sole basis indicate that says tuality” provision in the handbook provisions. the handbook action was Cf. tardiness can result termi- that excessive & Blue Shield v. Blue Cross Toussaint warning, while nation 579, Mich., 408 Mich. preserves the provision “Code of Conduct” (Jury (1980) could conclude saying concept by employment-at-will good discharged without not be would is one several nonexclusive job on oral assurances cause, based ” “discipli- “may violations that result by a man- reinforced security which were nary discharge.” (emphasis action or con- policies). Because ual Tel. added) Tel. & Chin v. American provisions flict in the 96 Misc.2d 410 N.Y.S.2d solely from arises provi- terms, of which question Ameri- we can determine whether written Before for the court. is one of law controls Freight any sion can violated Williston, Corbin, supra. If a supra; See provisions, must determine specific provision exists between conflict specific provi provision, the general and a Barbara A. BROWN and Milton D. govern. Doll sion is to Enchanted World Brown, Appellees, Plaintiffs and Buskohl, (S.D. 398 N.W.2d 149 Museum v. 1986). Thus, specific provision the more requires here that before BOARD OF COUNTY COMMISSIONERS tardiness, employee for terminates an COUNTY, FOR PENNINGTON South given warning. employee must be Dakota, Hamm, and Leo Neil Van Sick provision specific contract re Since the le, Triggs Gladys Babcock, Less controls, ques the next garding tardiness individuals members of the Pen provision is whether this tion to be resolved nington County Board of Commission here, applicable to the facts ers, Pennington County High and the provision whether the was breached. See way Department, and Jack C. Dier as Toussaint, (Having first resolved supra individual, Director and as an Defend question of whether a contract existed Appellants. ants and employee could be termi under which the cause, jury could then nated No. 15893. discharge for the determine the reason Supreme Court of South Dakota. breached). whether the contract was Reso discharge the reason for Bauer’s lution of Argued Feb. 1988. necessary in case because if Bauer is any April Decided was terminated for tardiness without warning, controlling then the

provision But if Bauer was was violated. reason

terminated for some other under

the “Code of Conduct” then could Johnston, warning. supra.

without See always permitted jury

“The to determine *6 employer’s discharging true reason for Toussaint, employee.” supra 292 896; v. Micro

N.W.2d at see also Khanna Corp., Cal.App.3d 215 Cal.

data (1985) (Reasons

Rptr. jury

are for the under California law which

applies good faith and fair a covenant contracts).

dealing

true reason for Bauer’s is a mat case, jury

ter for the in this because the involve,

question may among things, other

consideration of the nature of Bauer’s credibility

duties and the

Freight’s management personnel, who variety

claim a of other reasons for Bauer’s

discharge. Once the reason for Bauer’s resolved, question

discharge is then the finally

breach can be answered. summary

should be reversed and remanded.