Linda T. Schuster, a former employee-at-will of Compliance Environmental Incorporated, appeals the Superior Court’s grant of summary judgment to Compliance and its president, Valentino P. Derocili. Schuster argues that the Superior Court erred when it found that termination of her at-will employment based upon her refusal to submit to her employer’s alleged sexual advances did not constitute a valid cause of action for breach of contract. Schuster also argues that Derocili slandered her when, during a meeting attended by Derocili, Schuster and Schuster’s supervisor, Derocili stated that he terminated Schuster’s employment because her work performance was substandard.
We find that the Superior Court erred when it found that Schuster’s complaint did not allege a valid cause of action that Derocili had breached an implied covenant of good faith and fair dealing contained in her at-will contract of employment. We further find that the Superior Court correctly dismissed Schuster’s slander claim. Therefore, we REVERSE in part, AFFIRM in part and REMAND this case to the Superior Court for proceedings consistent with this opinion.
I
On September 2, 1997, Schuster began working temporarily as an administrative assistant for Compliance. On October 13, 1997, Schuster began working full-time for Compliance under a written employment agreement, which could be terminated by either party giving thirty days written notice. Schuster worked primarily for Der-ocili, the president and controlling shareholder of Compliance.
Schuster contends that Derocili began making sexual comments and innuendos towards her several weeks after she began to work at Compliance. Schuster contends that Derocili began touching her inappropriately by hugging her, putting his hands on her chest and/or legs, putting his fingers between her cleavage and attempting to kiss her on the lips. Schuster contends that despite informing Derocili that his conduct made her uncomfortable, he continued to make advances towards her. Schuster complained to two co-workers about Derocili, and after consulting her pastor, she began recording Derocili’s conduct in a journal and rejecting Derocili’s advances more forcefully. Derocili admitted that there was touching between him and Schuster but contends that Schuster “mischaracterizes” the contact.
In December 1998, Derocili fired Schus-ter in a face-to-face meeting attended by Brian Goff, Schuster’s supervisor. At the meeting, Derocili handed Schuster a termination memorandum that stated Schus-ter’s termination resulted from substandard job performance. Believing that the statements in the memorandum were false and that Derocili actually terminated her merely for refusing his sexual advances, Schuster refused to sign the memorandum. Schuster also contends that during the meeting, Derocili made slanderous remarks about her. Goff testified at a deposition that Schuster’s work was “unsatisfactory in all respects.” 1 Schus-ter’s termination, however, came only seven days after she had received a $500 performance-based bonus. Schuster had also completed a ninety day probationary period, received several pay raises and another performance-based bonus during that time.
On February 4, 1999, Schuster filed this suit in the Superior Court. On March 8, 1999, Schuster filed a complaint with the
II
This Court reviews “the grant of summary judgment de novo both as to the facts and law in order to determine whether or not the undisputed facts entitled the movant to judgment as a matter of law.” 3 The Court must “examine the record to determine whether, after viewing the facts in the light most favorable to the non-moving party, the moving party has demonstrated that no material issues of fact are in dispute and it is entitled to judgment as a matter of law.” 4
First, we address whether there exists a common law cause of action for sexual harassment based upon a breach of the implied covenant of good faith and fair dealing exception to the at-will employment doctrine where the termination is alleged to have violated a recognized, legally cognizable public policy exception to at-will employment. Second, we determine whether the General Assembly intended 19 Del.C. § 710 et seq., Delaware’s Discrimination in Employment Statute, to be the sole remedy for a claim of sexual harassment by a terminated employee. Third, we consider whether Schuster’s claim contains a viable cause of action against Derocili for deceitfully manufacturing false grounds for her dismissal. Finally, we address Schuster’s slander claim.
Ill
May Schuster bring a common law cause of action for sexual harassment based on a breach of an implied covenant of good faith and fair dealing exception to the at-will employment doctrine because her employer terminated her contrary to public policy? Schuster argues that the Superior Court erred when it found that 19 Del.C. § 710 et. seq., the Delaware Discrimination in Employment Statute, offers the exclusive remedy for her claim because, she argues, there is no legal authority that fifing a claim with the Department of Labor “is to the exclusion of other remedies.” 5 Schuster argues that “[wjhile 19 Del.C. § 712 authorizes the Department of Labor to prevent unlawful employment practices, it does not abrogate an employee’s right to assert [a] private cause of action against the employer. Rather, it merely empowers the Department of Labor and the Attorney General’s Office with enforcement powers against employers found to be in violation of this subchap-ter.” 6
The Superior Court found that Schuster failed to present a valid cause of action because “Delaware has not recognized a common law cause of action for employment discrimination, including sexual harassment”
7
because there is already a statutory scheme in place to address her
Delaware law prohibits employment discrimination, including discrimination based on sex, in terms almost identical to Title VII of the 1964 Civil Rights Act.
12
In Delaware, unlawful employment practices are set forth in the Delaware Discrimination in Employment Statute, which empowers the Department of Labor to investigate allegations of discrimination, to conciliate disputes between employers and employees and to issue remedial orders upon a finding of discrimination.
13
An aggrieved employee may file a claim of discrimination with the Delaware Department of Labor.
14
The statute authorizes the Department of Labor to serve the charge upon the employer and investigate it.
15
If the Department of Labor determines that there is reasonable cause to believe that the charge is true, it will initially attempt to secure voluntary compliance through informal methods of conciliation and persuasion.
16
If the Department of Labor determines that voluntary compliance and conciliation are not possible, it will issue a complaint and institute proceedings before a review board.
17
The review board then conducts a hearing and orders the appropriate relief.
18
Any complainant aggrieved by the decision of the review board may obtain judicial review.
19
Judicial review is initiated by filing a petition in the Court of Chancery within thirty days of the decision of the review board.
20
The Court of
In this case, the Department of Labor dismissed Schuster’s charge that Derocili terminated her because she refused to submit to his alleged sexual advances. The issue then is whether Schuster may continue her common law cause of action independently of the Department of Labor’s proceedings. The Superior Court relied on Ayres v. Jacobs & Crumplar, P.A. 24 and Drainer v. O’Donnell 25 to support its view that Schuster may not continue her common law cause of action because the statutory proceedings provide the exclusive remedy for her discrimination claim. The Superior Court carefully relied on precedent and followed the case law then existing in this State. Because this case presents a unique procedural and factual scenario, it is important to discuss the development of earlier cases in order to clarify Delaware law.
In Ayres, the plaintiff asserted a discrimination claim, among others, based on state and federal statutes as well as a discrimination claim based on an alleged breach of an implied covenant of good faith and fair dealing. After holding plaintiffs statutory discrimination claim time-barred for failing to file within the two-year statute of limitations, the court denied plaintiffs claim for breach of a covenant of good faith and fair dealing, holding that a plaintiff could not use an alleged breach of the covenant, which has a three-year statute of limitations, to escape the two-year statute of limitations on racial discrimination imposed by 42 U.S.C. § 1981 and § 1983. 26 The court in Ayres stated that if it were to recognize a cause of action for racial discrimination based upon an alleged breach of an implied covenant of good faith and fair dealing, “it would allow a plaintiff to escape the established two-year personal injury statute of limitations on racial discrimination claims in employment, e.g. § 1981 and § 1983 claims, simply by couching her allegations of racial discrimination in terms of a breach of an implied contractual obligation.” 27 Schuster distinguishes Ayres, arguing that she had no federal sexual discrimination claim because Compliance does not meet the definition of employer, under 42 U.S.C. § 2000e(b), which sets a threshold of at least fifteen employees. She also argues that she is not attempting to avoid the bar of any applicable statute of limitations.
The court in Ayres relied on Finch v. Hercules Inc., 28 a 1992 case decided by the United States Court for the District of Delaware, which, along with several other cases decided before and after Finch, suggests that Delaware law generally would reject common law causes of action for employment discrimination, including a cause of action based on a breach of an implied covenant of good faith and fair dealing.
In Williams v. Caruso 34 the Delaware District Court, relying on the rationale in Finch, dismissed the plaintiffs claim that her employer terminated her employment in retaliation for her sexual harassment complaint, which she had argued violated public policy. The court found that the plaintiff, Williams, had not “stated a claim for breach of the implied covenant of good faith and fair dealing under existing case law.” 35
In Drainer, the Superior Court dismissed Drainer’s complaint that she resigned after her employer failed to address property an incident of sexual harassment. The Superior Court held that it lacked subject matter jurisdiction over Drainer’s as well as any sexual harassment claim because “Delaware has not recognized a common law cause of action for employment discrimination, including sexual harassment.” 36 The Superior Court continued stating, “Delaware’s employment discrimination statute outlines specific procedures that must be followed to assert an employment discrimination claim. Judicial review is only available after a Delaware Department of Labor Review Board hearing.” 37
The Wright court in turn relied on Chalawsky v. Sun Refining and Marketing Co. Inc., 40 which dismissed a state law claim for age discrimination brought directly under 19 Del.C. § 711. After explaining that the Department of Labor review board had dismissed Chalawsky’s case, the District Court found that Cha-lawsky did not have a right to sue under sections 711 and 712 because he had exhausted his state remedies. 41
Schuster does not assert that her claim arises directly from section 711. Instead she asserts a common law claim for a breach of an implied covenant of good faith and fair dealing derived from her contract of employment. Therefore we do not decide that a plaintiff may assert a private cause of action for employment discrimination based on sexual harassment on the theory that the Delaware legislature “intended [such] remedies” under Sections 711 and 712. 42 We do today, for the first time, decide that a person may assert a cause of action for breach of an implied covenant of good faith based upon a termination alleged to have resulted from a refusal to condone sexual advances. This private cause of action flows directly from Delaware’s clear and firmly rooted public policy to deter, prevent and punish sexual harassment in the workplace.
Schuster contends that Derocili owed her certain obligations regarding her at-will employment contract under an implied covenant of good faith and fair dealing. Schuster contends that Derocili violated that implied covenant of good faith and fair dealing contained in her at-will employment contract when he allegedly terminated her employment as a result of her refusal to submit to his sexual advances. Schuster argues that she may enforce the public policy of this State by bringing an action against her employer based upon his breach of this implied covenant of good faith and fair dealing.
Schuster argues that sexual harassment in the workplace violates the public policy expressed in 19
Del.C.
§ 711, which prohibits discrimination in employment prac
In DuPont v. Pressman, we held that an employee was entitled to recover damages for wrongful termination based on fictitious grounds, as an application of the good faith and fair dealing exception to the employment-at-will doctrine. 45 In doing so, we also held that the employee in that case was not entitled to recover under the public policy exception recognized in some cases “since he does not identify an explicit and recognizable public policy.” 46
Because of our holding in Pressman on the inapplicability of the public policy exception to the facts of that case, Pressman did not involve the issue of the employee’s standing to assert the public policy exception. In cataloguing the various exceptions to the employment-at-will doctrine, we cited several cases applying the public policy exceptions, 47 including the Court of Chancery decision in Shearin v. E.F. Hutton Group, Inc., where that Court recognized that the public policy exception may apply to a lawyer-employee wrongfully fired for refusing to violate her ethical duties. 48 In Shearin, the lawyer-employee had an independent professional duty as a member of the bar under the Delaware Lawyers’ Model Rules of Professional Conduct to advance or sustain compliance with ethical principles. 49
We recognize that the Delaware Discrimination in Employment Statute establishes a procedural scheme within which employees may assert discrimination claims. It outlines the procedure to be used in effectuating a discrimination claim, including appellate review, as well as the authority of the Department of Labor to enforce the statute’s mandate. The statute, however, is silent on whether a plaintiff may file a separate cause of action independently of the statute. The statute
The Delaware General Assembly could have written the provisions of Section 712 to preclude any common law cause of action. Delaware’s Workers’ Compensation Statute is an ideal example of the General Assembly’s intention to preclude common law claims, when it chooses to do so. Title 19 Del.C. § 2304 states that every employer and employee, adult and minor, “except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.” This section has been held to preclude common law claims based on the Worker’s Compensation Statute. 51 Exceptions have been found only where the claim is based on a bad faith breach of contract, such as an insurer’s delay in making payments. 52
IV
Whether sexual harassment in the workplace violates the public policy of this State is not in dispute. The issue in dispute here is whether Schuster occupied a position with responsibility for implementing this State’s public policy to combat sexual harassment in the workplace.
In its Order granting Derocili summary judgment, the Superior Court found that Schuster failed to assert a responsibility for implementing a recognized public interest. The Superior Court stated that Schuster “must satisfy a two-part test to demonstrate a breach of the covenant of good faith and fair dealing under the public policy category: (1) the employee must assert a public interest recognized by some legislative, administrative or judicial authority and (2) the employee must occupy a position with responsibility for advancing or sustaining that particular interest.” 53 The Superior Court found that Schuster “has not, and cannot, demonstrate to the Court that she has the responsibility for implementing a recognized public interest; therefore, her public policy exception claim must fail.” 54 We disagree and hold that nothing in Pressman or Souder is a bar to this plaintiffs standing to enforce the public policy exception.
Schuster contends that because she was as an employee to whom Derocili allegedly
Because at-will employment has such a deep-rooted history, few exceptions have been created. One exception is where termination violates public policy. Many cases in which the plaintiff argued that the termination violated public policy involved a plaintiff who objected to certain business decisions or refused to perform work-related duties because those business decisions and work-related duties violated public policy. 55 Combating sexual harassment in the workplace, however, has nothing to do with deterring or thwarting a company from pursuing its legitimate business goals.
Sexual harassment in the workplace is a systemic social problem that involves a personal assault on the recipient. Preventing it is of immense social value, and combating it promotes the public policy of this State. As such, the unfortunate recipient of unwelcomed sexual advances holds a position of responsibility contemplated by the public policy exception. We do not believe that standing to assert a claim for sexual harassment is confined to human resource or compliance officers who are duty bound by the organization and the law to enforce standards of conduct within a business and thereby excludes alleged victims of sexual harassment from standing. Therefore, we find that Schuster occupied a position with responsibility for advancing Delaware’s policy of preventing sexual harassment in the workplace. 56
Our recognition of this compelling necessary exception in no way constitutes an overbroad application of the implied covenant of good faith and fair dealing that could thereby swallow the at-will employment doctrine and effectively end at-will employment. We merely recognize a common law cause of action that provides employees with an important weapon to advance Delaware’s avowed policy to assure civilized conduct in the workplace.
We hold, therefore, that Delaware recognizes a common law cause of action for a breach of a covenant of good faith and fair dealing implied in an at-will em
V
We next consider whether Schuster has a valid cause of action implied from her complaint’s allegations that Derocili deceitfully manufactured false grounds for her dismissal or manipulated employment records to create fictitious grounds for termination. Pressman suggests that a cause of action may arise from “acts of the employer manifesting bad faith or unfair dealing achieved by deceit or misrepresentation in falsifying or manipulating a record to create fictitious grounds to terminate employment.” 57 Schuster alleged that Derocili contrived fictitious reasons of poor work quality to support her employment termination. Given that she asserted receiving performance-based bonuses as well as passing the required probationary period, there exists a material issue of fact in dispute. Viewing the facts of this case in a light most favorable to Schuster, it appears that she has made a prima fade claim that she has suffered harm derived “from [Derocili’s alleged] creation of false grounds and manufacturing a record in order to establish a fictitious basis for termination.” 58 Schuster has presented evidence that a jury may believe that Der-ocili “did these acts, and did them intentionally, [therefore,] they amounted to a breach of the Covenant.” 59 We therefore grant Schuster, on remand, leave to amend her complaint to include a cause of action that Derocili violated an implied covenant of good faith and fair dealing when he allegedly falsified or misrepresented the record to create fictitious grounds to terminate Schuster’s employment.
VI
Schuster also argues that Derocili committed slander per se when he qualified her work as substandard in the presence of her co-worker, Goff. 60 Derocili argues that Schuster fails to show damage to her reputation in the community. Specifically, we find that Schuster’s claim necessarily fails because it lacks publication, a necessary element to support a claim of slander. 61 The statements were made solely in the presence of Schuster and her supervisors. There is no evidence in the record that these statements were published to any third party. We therefore AFFIRM the Superior Court’s grant of summary judgment on the defamation by slander claim.
VII
We hold that Schuster’s complaint alleged a valid cause of action for breach of an implied covenant of good faith and fair dealing arising from her at-will employment contract based upon her refusal to succumb to alleged sexual advances made by her employer in the workplace. Sexual harassment in the workplace violates not only the statute against discriminatory dis
Notes
. Appx. to Appellee’s Op.Br. at A-30.
. See Appx. to Appellee’s Op.Br. at A-20-23.
.
Mason v. United Services Automobile Association,
Del.Supr.,
.
Mason,
at 392;
Burkhart v. Davies,
Del. Supr.,
.Appellant's Op.Br. at 14.
. Id.
. Del.Super., C.A. No. 99C-02-004, Witham, J.,
. Order at 5 (citing 19 Del.C. § 710, et seq. and stating that these sections are "almost identical to the provisions of Title VII of the federal Civil Rights Act of 1962, as amended Id. at n. 5.
. Order at 5 (citing Drainer, at 2).
. Id. at 9.
.
Id.
Interestingly, while the Superior Court found that Schuster may not bring a separate tort claim, Schuster, in fact, asserts a claim for a breach of contract under an implied covenant of good faith and fair dealing. Because Schuster did not bring a tort claim, we do not address that issue.
See Lord,
at 402-OS (dismissing a
prima facie
tort claim as being "inconsistent with the employment at-will doctrine”);
see also Konstantopoulos v. Westvaco Corp.,
Del.Supr.,
. Compare 19 Del.C. § 711 with 42 U.S.C. § 2000e-2.
. 19 Del.C. § 710 et. seq.
. Id. at § 712(b).
. Id.
. Id. at § 712(c).
. Id. at § 712(e).
. Id. at § 712(g).
. Id. at § 712(h).
. Id.
. Id.
. Id.
. Id. at § 712Q).
. Del.Super., C.A. No. 96C-07-258 (WTQ),
. Del.Super., C.A. No. 94C-08-062, Alford, J.,
. Ayres’ federal claim was dismissed for improper service of process.
. Id. at *12.
. D.Del.,
. Id. at 312.
. Del.Supr.,
. See Merrill, at 101 (holding that "every employment contract made under laws of this State, consonant with general principles of contract law, includes an implied covenant of good faith and fair dealing”). Id.
. Del.Supr.,
.
See Lord v. Souder,
Del.Supr.,
. D.Del.,
. Id. at 292. It is also important to note that the court in Williams held that 19 Del.C. § 726 precluded Williams from bringing a claim based on retaliatory discharge. While section 726 does address retaliatory discharge, it addresses it only in the context of employment discrimination based on handicapped persons. See 19 Del.C. § 720 et. seq., Delaware's Handicapped Persons Employment Protection Act.
.
Id.
at *2 (citing
Wright,
. Id.
. Wright, at 1091.
. Id. (citing Chalawsky, at 799).
. D.Del.
. Id. at 799.
.
Mann v. Oppenheimer & Co.,
Del.Supr.,
. A 1990 Delaware law criminalized sexual harassment generally. The statute defines sexual harassment to be when a person “threatens to engage in conduct likely to result in the commission of a sexual offense against any person” or when a person "suggests, solicits, requests, commands, importunes or otherwise attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with him, knowing that he is thereby likely to cause annoyance, offense or alarm to that person." Section 673(1) — (2).
. Schuster lists offensive touching, unlawful sexual contact in the third degree, lewdness, prostitution and patronizing a prostitute. Appellant’s Op.Br. at 8.
.
. Id. at 442.
.Id. at n. 13.
. Del.Ch.,
. We note that this Court in
Lord v. Souder,
Del.Supr.,
.
See General Motors Corp. v. Burgess,
Del.Supr,
.
See Kofron v. Amoco Chems. Corp.,
Del. Supr.,
.
See, e.g., Pierce v. International Ins. Co. of Illinois,
Del.Supr.,
. Opinion at 7 (citing Pressman, at 442).
. Id. at 8 (citing Lord, at 401).
.
See, e.g., Pierce v. Ortho Pharmaceutical Corp.,
. We agree with the approach taken by the New Hampshire Supreme Court in
Monge v. Beebe Rubber Co.,
.
See Pressman,
. See Pressman, at 444.
. Id.
. Schuster contends that Derocili defamed her by making a statement that maligned her in her business or trade, one of the four slander
per se
categories in
Spence v. Funk,
Del.Supr.,
. See Henry v. Delaware Law School of Widener University,
Del.Ch., C.A. No. 8837, Lamb, V.C.,
. It is important to distinguish this case from
Brett v. Berkowitz,
Del.Supr.,