*1 Mack, Moosbrugger, Ohlsen, Dvorak & ELDRIDGE, Carter, Rosemary Forks, Grand plaintiff ap- Plaintiff Appellant, pellant; argued by Moosbrugger. John H. Vogel, Brantner, Knutson, Kelly, Weir & Ltd., Bye, Fargo, and,appel- for defendants EVANGELICAL LUTHERAN GOOD SA lees; argued by Douglas R. Herman. Kathryn MARITAN SOCIETY and Finn, Appellees. Defendants and GIERKE, Justice. Civ. No. 870137. appeal by This is an Rosemary Eldridge
Supreme of North Court Dakota. (Eldridge) from a issued granting Evangelical district court Luther- 29, Dec. Society’s (Society) Good Samaritan mo- tion for judgment. We affirm. May In Eldridge began working for the at the Good Samaritan Cen- Larimore, ter Eldridge North Dakota. part-time employee working was four days per Eldridge’s position week. was charge that of a nurse. Her duties as a charge nurse administering included medi- residents, cation and treatments doc- umenting treatments, daily assessing such condition, consulting the resident’s physician. with the August In was as- signed position the additional of in-service responsibilities director. Her as in-service director included initiation and review of plans. Her individual resident care em- days schedule then entailed three per week as in-service director and two days per charge week as a nurse. This August schedule continued from of 1978 spring until at which time personnel. there were cutbacks office Eldridge’s position in-service director days per cut back to two week while the charge position nurse was increased to per days three week. (Finn), August Kathryn Finn
Eldridge’s supervisor, it determined suspend Eldridge’s necessary duties El- as in-service director order to allow limiting dridge get organized the de- linquent plans. Accordingly, Eldridge care in or- was relieved of her in-service duties up on the care der to allow her to catch plans delinquent that wére at that time. El- Subsequently, Finn determined that *2 damages, phase punitive the and claims responsibility for claims dridge lacked summary judgment. motion for The and a involving plans and the care of her work court written motions trial directed that plan duties were reas- therefore the care 13, 1987, January filed. On and briefs be signed. opinion in the court a memorandum trial charge working as a Eldridge continued Policy concluded the Hand- Personnel days per from Au- for three week nurse Society employment the an book of was not July gust until of 1983 which of 1982 Consequently, contract. the trial court charge as a nurse was time her schedule genuine any issue found no as material Eldridge days per to four week. increased granted and therefore the defendant’s fact per days four week continued with the summary judgment. Janu- motion On requested an educational until she schedule 26, 1987, judgment ary a was filed which January in of 1985. leave of absence Eldridge’s complaint preju- with dismissed Eldridge January com- On appeal This followed. dice. against present action the Soci- menced the Eldridge appeal. on El- raises two issues Finn, her ety, corporate employer, and her wrongfully dis- dridge that she was claims supervisor, claiming a of breach immediate with charged employment from her the So- Eldridge con- employment an contract.1 ciety Society failed to follow because the Policy that the Personnel Handbook
tended Progressive Discipline of Procedures the Society an distributed the Policy which was its Personnel Handbook presump- rebutted the ment contract which creating excep- an contract an Eldridge employment. fur- tion of at-will employment. Eldridge to at-will also tion wrongfully ther that she was contended relationship a contractual claims since Society the did not fol- terminated because genuine mate- existed there are issues as to discipline procedures progressive low the preclude granting the of rial facts which employee its handbook.2 summary trial judgment and therefore the granting erred in court conference, Society and pretrial At the of in favor the defendants. defendants, Finn, the made several oral dispositive appeal, of this including a motion to dismiss Finn Because it is motions defendant, on or not a motion to strike the tort our review focuses whether a statement, relieving part- the date nature Eldridge of which refers to and 1. claims that her her date, warning position any plus specifics which result- time of in-service director of of earlier days per time, five ed a reduced workload from offense. Informa- nature of the current days per three week constituted a termi- week to nation of possible disci- tion will be included of future employment. our Because of determi- plinary If no further violation ensues action. employee, at-will nation that we an year, a will be removed. within statement Eldridge was not decide whether or not need Pay— Three-Day Suspension 3. Without actually discharged or terminated from her em- ployment with the regarding employee will be counseled The Society. be a statement will indiscretion and written employee placed will file. The his/her Policy of the Soci- In the Personnel Handbook statement, copy a of this which refers receive ety, regarding Progressive provisions warn- the date and nature of earlier Discipline reads as follows: Procedure date, time, ing(s) plus specifics of nature of AND RULES "VII. PROCEDURES be in- Information will the current offense. Progressive Discipline “A. Suspension Three-Day Without Warning employee cluded Pay will be 1. Verbal —The disciplinary regarding possible an action. the indiscretion and future counseled year, placed em- will be in the a informal statement violation ensues within If no further copy get ployee's file. will a S/he be the statement will removed. will be included statement. possible Information employee will 4. Termination —The disciplinary If fur- action. no future regarding a indiscretion and counseled year, ensues within a the state- ther violation placed will be written statement his/her will be removed. ment copy receive a file. The statement, will Warning employee will be 2. Written —The date nature refers to the which regarding a the indiscretion and counseled warnings(s) plus specifics [sic] earlier placed in statement will be written his/her date, time, offense.” nature of the current copy employee will of this The receive file. Policy Society Handbook of the stated that absence of a statute to employer contrary, right created employment contract which has the anwas employees terminate his with or exception to the at-will without cause. to follow the Pro- thus *3 in Discipline set forth
gressive
Procedures
Restaurants,
Inc.,
Bailey
v. Perkins
In
handbook.
employee
its
supra,
recognized
general
this Court
regarding
rule
of
modification
at-will
The construction
a written con
of
employee
employment by
as fol-
handbooks
ques
its
is a
legal
to ascertain
affect
tract
lows:
determine,
law for the court to
and
tion of
jurisdictions,
other
“Courts
how-
indepen
appeal,
Supreme
will
Court
on
ever,
recently
exception
have
created an
and
the contract
dently examine
construe
presumption
employment
of
to the
at will
if
in its
the trial court erred
to determine
may
held that an employer
and have
be
Perkins Res
Bailey v.
interpretation of it.
contractually
by promises, express
taurants,
Inc.,
120,
(N.D.
398
121
N.W.2d
employee
implied, in
or
handbooks with
Schwartz,
685,
Miller v.
1986);
354 N.W.2d
job
respect
security
to
and termination
Resources,
Alpar
West v.
688
(Citations omitted.)”
procedures.
484,
Inc.,
(N.D.1980).
In
N.W.2d
490
298
Restaurants,
Bailey
v. Perkins
Further,
contract,
a
must
interpreting
the contract
Inc., supra,
quoted Thompson
this Court
entirety
construed
and all
read and
in its
be
Co.,
Regis Paper
219,
v. St.
102 Wash.2d
taken
so
provisions
its
into consideration
of
230-31,
(1984),
685 P.2d
for the
1088
parties
deter
the true intent of the
is
general
regarding
rule
the modification of
Restaurants,
Bailey v.
Perkins
mined.
employment by employees hand-
at-will
Inc.,
Schwartz, supra;
v.
supra; Miller
follows:
books as
Bros.,
Farming Ass’n v. Martinson
Oakes
“
reason,
employer, for
an
whatever
‘[I]f
(N.D.1982).
907
atmosphere
security
job
creates an
of
spe-
case,
court
promises
In the instant
the district
with
of
and fair treatment
situations
Policy Hand
specific
treatment
that the
concluded
cific
thereby
is
to
employment
employee
an
contract and
an
induced
was not
and
book
job
actively seek
Eldridge’s employment was at
remain on the
and not
therefore
employment,
promises are
at
time
other
those
and could be terminated
will
components
agree.
enforceable
reason. We
relationship.
ment
We believe
of the North Dakota
34-03-01
Section
objective
unilateral
manifesta-
his or her
provides
follows:
Century Code
intent,
an
employer
creates
tion of
employment
at will—No-
“Termination
obligation of
and thus
expectation,
having
An
no
required.
tice
written
in accord with those
treatment
may
at the
term
be terminated
specified
(Second) of
promises. See
Restatement
other,
party
either
on notice to
will of
(1981)
2
is a man-
(promise
Contracts §
provided by this
except when otherwise
or
to act
intention
ifestation of
refrain
title.”
acting
specified way,
in a
so made
from
Thus,
in North Dakota when an
promise [promisee]
justify a
as to
term,
unspecified
the em-
hired for
is
been
understanding a commitment has
Sec-
presumed
is
to be at will.
made).
“
also,
Bailey v.
34-03-01, N.D.C.C.;
see
tion
will not
employers
be that
‘It
Restaurants,
Inc., supra 122;
Perkins
in em-
by statements
always be bound
Buchanan,
216, 221,
5
N.D.
v.Wood
specifically
They can
ployment manuals.
(1942).
680, 682
N.W.2d
that noth-
conspicuous manner
in a
state
be
Queen
Co.,
intended to
therein is
City Packing
ing
contained
Sand
In
relationship and
(N.D.1961),
part of
this Court
N.W.2d
Mayville
College,
Stensrud
State
compa-
statements
simply general
are
(N.D.1985),
this Court
Additionally, policy state-
ny policy.
necessary to
the criteria
determine
stated
amount
may not
as written
ments
appropriateness
summary judgment
mere-
treatment and
specific
promises
as follows:
pol-
company
ly
general statements
“Summary judgment
appropriate to
is
Moreover,
binding.
and, thus, not
icy
dispose of
promptly
expeditiously
specifically reserve
employer may
when, after
controversies without
trial
policies or write
modify those
right
viewing
light
most
the evidence
retains discretion
manner that
them in a
party against whom
favorable to the
Woolley v.
also
See
employer.’
sought
giving
*4
Inc.,
Roche,
99 N.J.
Hoffmann-La
inferenc
her the benefit of all favorable
origi-
(1985). [Emphasis
A.2d 1257
es,
question of
is involved or
only a
law
nal.]”
genuine dispute over either
there is no
Policy
or inferences to be
case,
Personnel
the material
facts
instant
v.
facts. Garcia
undisputed
found from
Society did contain
Handbook
Motors, Inc.,
affirmed. Supreme Court of North Dakota. ERICKSTAD, C.J., and VANDE Dec. WALLE, J., concur. Justice,
PEDERSON, Surrogate LEVINE, J.,
sitting place
disqualified.
MESCHKE, Justice, dissenting.
I dissent.
Obviously, any employment is a contract. the terms of that con-
The issue is about AND Undertaking “PROCEDURES
tract. Discipline,” as “Progressive
RULES” for agreement set
part of an not disciplinary discharge, does
terms “employment contract
necessarily fix the And, I cannot any period of time.” “Closing as an unam- Statement”
view “explicit disclaimer.”
biguous or evident issues of fact about
There are by an “ambiguity created and reliance in an hand-
employer’s disclaimer purports ‘taketh’ what
book ‘giv- appears to of the handbook
remainder
eth,’ ambiguity on the effect of such relationship.” employer-employee Restaurants, Inc., 398
Bailey v. Perkins Levine, (Justice specially
N.W.2d also Sadler (N.D.1986). See
concurring) Co-op., 409 N.W.2d Elec. Power
Basin
(N.D.1987). the summa-
Accordingly, I reverse would trial of
ry judgment and remand for
issues of fact. Hills, Inc., (N.D.1985); Striegel v. Dakota dispute though factual note that even
4. We exist, proper Gowin v. if Hazen (N.D. Ass’n, factual of the Hosp. is such that the resolution 349 N.W.2d law dispute Memorial change the result. Stensrud 1984). will not College, Mayville State