Plаintiff Kit C. Larson appeals from a summary judgment granted in favor of his former employer, SYSCO Corporation, and his supervisors, defendants Robert Jenson and Robert Wagner, in a suit arising out of Larson’s termination of employment.
Larson was employed by SYSCO as a commissioned salesman from March 1981 through April 1984. He worked under a written employment agreement which provided that his employment could be terminated by SYSCO at any time upon notice. Larson was terminated by his immediate supervisor, Wagner, without explanation except for the statement that he was to be “let go.” SYSCO paid Larson all commissions due him plus severance pay for a two-week period, representing approximately 30 percent per week more than that which he had earned as commissions immediately prior to his termination. SYSCO submitted to the Utah Department of Employment Security the required “blue slip,” which indicated that Larson’s employment had been terminated for “poor performance.”
Larson subsequently filed this suit, alleging breach of contract, defamation, and the intentional infliction оf emotional distress
I.
Larson contends that there are numerous issues of disputed fact which should have precluded the grant of summary judgment. First, he argues that the manner of his termination did not comply with the provisiоn of the written employment contract governing notice to be afforded him upon termination. In this respect, the agreement provides:
Employee’s employment with the Company may be terminated at any time by the Company or by Employee upon proper written notice. Proper notice is related to the length of employment as follows: ... over one (1) year employment, two weeks’ notice.
Larson worked for SYSCO for more than three years and under the contract was entitled to two weeks’ written notice. It is undisputed that after the employment contract had been executed, SYSCO revised its policy concеrning employee termination, and instead of giving the employee the advance notice required by the contract, it terminated the employee without notice but provided him with severance pay for а period of time equal to the advance-notice time specified in the contract. This was done in response to SYSCO’s experience that sales performance typically declined after rеceiving written notice of termination. We find no violation of the contract by this policy. Larson was entitled to two weeks’ advance notice. He received pay for two weeks but was relieved of the оbligation to render any services during that time. This left him free to seek other employment while enjoying full pay without any employment responsibility.
Larson contends that the legality of his termination should be determined according to Idaho law inasmuch as the written agreement provided that “[i]n the event of any dispute arising under this agreement, it is agreed between the parties that the law of the State of Idaho will govern the interpretation, validity and effect of this agreement.” He concedes that the general rule in Idaho is that an employee hired for an indeterminate period of time is an employee at will and can be terminated by his employer at any time.
Jackson v. Minidoka Irr. Dist.,
Assuming that Idaho law does apply, we find nothing in Larson’s pleadings or in his argument which would bring him within the public policy exception to Idaho’s employment-at-will rule. At bottom, Larson’s defense to his termination is nothing more than a challenge to his employer’s determination that his performance was poor. Larson asserts that he was a superior producer and that he was on the verge of acquiring two large accounts which would have proved profitable to both him and SYSCO. Even assuming Larson to be correct in the evaluation of his own performance, SYSCO’s motivation for terminating him in no way contravenes public policy as illustrated by the Idaho court in
Jackson v. Minidoka lrr. Dist.
Later Idaho cases make it clear that the public policy exception only protects employees who refuse to commit unlawful acts, who perform important public obligations, or who exercise certain legal rights or privileges.
Staggie v. Idaho Falls Consol. Hosps., Inc.,
Nor is there any merit in Larson’s argument that SYSCO may have violated an implied covenant of good faith and fair dealing such as was imposed by the Massachusetts court in
Fortune v. National Cash Register,
Lastly, Larson contends that his termination was wrongful because he had provided SYSCO with separate and independent consideration which should have precluded it from terminating him without good cause. Again, we find no merit in this argument. The only separate and independent consideration suggested by Larson was his extensive efforts to develop a “touch tone” system. Larson, however, does not contend that his “extensive efforts” were requested by his employer or accepted by his employer with the intent by either party that these efforts would transform an employment-at-will contract into a contract where he сould be terminated only for good cause.
II.
Larson alleged in his complaint a claim against SYSCO for defamation arising from the comment noted on the separation slip sent to the Utah Department of Employment Security that he had been fired for “poor performance.” He did not allege any special damages, and thus he must show that SYSCO’s statement constituted defamation
per se.
Special damages are not requirеd in certain instances since malice and damages are presumed. These instances are where the statements are false and allege criminal conduct on the part of the plaintiff or impute the contracting of some loathesome disease, unchaste behavior (on the part of a woman) or conduct which is incongruous with the exercise of a lawful business, trade, profession, or office.
Baum v. Gillman,
We recognize that SYSCO’s statement could impede Larson’s acquisition of other employment. However, the tyрe of statement required for the purposes of defamation
per se
with respect to the practice of a trade or profession necessarily must, as its natural and proximate consequence, cоmpel the conclusion that plaintiff will be damaged.
Baum,
III.
Larson also asserts that the actions surrounding his termination with SYSCO constituted an intentional infliction of emotional distress. We stated in
Samms v. Eccles,
the defendant intentionally engаged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.
While termination can be an emotionally distressing event in one’s life, mere termination alone does not constitute the intentional infliction of emotional distress. Unless some outrageous conduct rising to the level described in Samms has attended the termination, Larson cannot maintain the action. He failed to raise a genuine issue of material fact with respect to this tort. Accordingly, the trial court was correct in dismissing this claim on the summary judgment motion.
IV.
After defendants moved for summary judgment, Larson moved for leave to file an amended complaint. He did not submit a proposed amended complaint, but in his motion he stated that he desired to amplify the allegations in his complaint by asserting that there is an impliеd covenant of good faith and fair dealing in an employment contract, which covenant was violated here by SYSCO. He relies on rule 15(a), Utah Rules of Civil Procedure, directing that leave to amend “shall be freely given when justice so requires.”
See Girard v. Appleby,
We find no error in the denial of Larson’s motion to amend. As pointed out in part I of this opinion, he has totally failed to cite or furnish us with any Idaho authority, which he claims governs this case, holding that there is an implied covenant of good faith and fair dealing in at-will employment contracts. Our research has disclosed none.
THE JUDGMENT IS AFFIRMED.