Opinion
No. CV02-0459754
April 15, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #119
The plaintiff brings this six-count complaint against the defendants, First Union National Bank, Nancy Knox and Janice Yusza, as a result of what she alleges to be the events surrounding the termination of her employment. The first count sounds in breach of express contract, the second in breach of implied contract, and the third in breach of the implied covenant of good faith and fair dealing, all of which are directed against the bank. Counts four, five and six allege defamation as to each of the three defendants.
The defendants have now moved for summary judgment in their favor as to all six counts of the complaint. In support of their motion the defendants have filed a number of documents the most significant of which is the defendant bank's employee handbook. The plaintiff has filed a brief in opposition to the defendants' motion to which she too attaches a number of documents including her 32 paragraph affidavit.
Connecticut Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A "material fact" is one which will make a difference in the outcome of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969). "Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 12 (1983).
In the first count of the complaint, the plaintiff alleges that the defendant bank breached an express agreement that she would not be terminated except for cause. The plaintiff alleges that the "cause" was false and a violation of the bank's promise and obligation and that the bank further breached its agreement with her by failing to seriously consider her appeal.
It is undisputed that the plaintiff, prior to the event giving rise to her termination, was in possession of the bank's Employee Handbook. The Handbook contains a table of contents which under the heading "Introduction" lists "Important Notice to First Union Employees." The following page contains that "Important Notice" which provides in part:
This Employee Handbook is not a direct ("express") or indirect ("implied") contract or promise of employment benefits. This Employee Handbook does not contain any promise that you can enforce in a court of law. In other words, the Handbook does not legally bind you or First Union.
First Union Employees are employed "at will." This means that First Union does not employ you for any defined period of time or promise to continue to employ you. You have the right to quit your job at any time and for any reason you deem appropriate. Likewise, First Union may terminate any employee or change the employee's wages, benefits or working conditions at any time, with or without cause or prior notice, for any reason. First Union may terminate your employment whether or not it has complied with any of the procedures in the Handbook. Of course First Union may not terminate your employment for any reason that violates the laws of the United States or the state where you work.
No one at First Union has the authority to change an employee's "at will" status. No such change in status, and no promise or guarantee of employment, shall occur unless the promise is clearly stated in a written contract signed by you and an authorized First Union officer.
First Union is not required to follow any specific procedures in this Employee Handbook or elsewhere in taking any personnel action, including but not limited to hiring, promotion, demotion, payment, or termination of any employee.
In a section of the Handbook entitled "Discipline and Dismissal" it is stated:
First Union reserves the right to terminate the employment relationship with or without cause at any time or to impose any form of discipline without following the step listed above.
The law is well settled that contracts of permanent employment or for an indefinite term, are terminable at will. See Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629 (1959); Fisher v. Jackson, 142 Conn. 734, 736 (1955).
Additionally, the Connecticut Supreme Court has held:
By eschewing language that could reasonably be construed as a basis for a contractual promise, or by including appropriate disclaimers of the intention to contract, employers can protect themselves against employee contract claims based upon statements made in personnel manuals.
Finley v. Aetna Life and Casualty Co., 202 Conn. 190, 199 n. 5 (1987).
The plaintiff claims that the provisions of the Handbook sends "mixed signals" as to whether an employee can be terminated "for cause" only. She points to that provision on p. 62 which provides that: "An employee may be dismissed . . . [i]f management determines an employee's misconduct, unsatisfactory job performance or violation of the attendance policy is serious to warrant it." She also cites that portion of the Handbook that states the "situations where immediate dismissal is warranted include . . . misconduct such as falsification of records . . ."
In the court's view, however, the provisions of the Employee's Handbook could not be more clear. The language therein clearly indicates that the plaintiff is an at will employee who can be terminated for any reason, with or without cause. The plaintiff states in her affidavit that during the 19 years that she was employed by the defendant bank and its predecessors, it had been her experience that employees were fired only "for cause" as was she. She states that her interpretation of the Handbook confirmed her belief that she could be fired only for cause. Nowhere, however, does she state that any particular official at the bank specifically made such a representation to her.
It is the opinion of the court that there exists no issue of material fact and there existed no contract between the parties providing that the plaintiff could be terminated only "for cause." How the defendant dealt with other employees over the years, or indeed the plaintiff herself, does not create a contract unless such conduct can be shown to be as a result of a contractual commitment. Christensen v. Bic Corporation, 18 Conn. App. 451, 455-56 (1989). Thus the plaintiff's claim of an express contract as alleged in the First Count of the Complaint cannot withstand the defendant's motion for summary judgment.
In the second count of the complaint the plaintiff alleges breach of an implied in fact contract as to the defendant bank. As with an express contract, a contract implied in fact depends upon an actual agreement, a meeting of the minds. Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111 (1988).
The plaintiff relies on the conduct noted above, that is, her claim that the bank's practice was to terminate employees "for cause" only. However, the plaintiff's subjective belief is insufficient to establish an implied contract without some evidence that the bank intended to be bound by such conduct. Christensen v. Bic Corporation, supra at p. 458. Here there is no such evidence. The language of the Handbook expressly disclaims any contract beyond that of an "at will" employer-employee relationship.
Again, in the court's view, the plaintiff has not put forth sufficient documentation to create an issue of fact as to the existence of an implied in fact contract between the parties.
In count three, the plaintiff alleges a violation of the covenant of good faith and fair dealing in her contract of employment. As noted above, the court is of the opinion that there exists no issue of material fact with respect to the plaintiff's status as an "at will" employee. That being the case, without a claim of a violation of some public policy, a claim of violation of the covenant of good faith and fair dealing cannot be predicated simply upon the absence of good cause for a discharge. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 571 (1984). The third count must also fail.
The fourth, fifth, and sixth counts allege defamation against the bank and the two individual defendants. The basis of the defendants' motion for summary judgment on these counts is that the court should not recognize the concept of "self publication." Apparently, this issue has been certified to the Connecticut Supreme Court by the Second Circuit Court of Appeals. Cweklinsky v. Mobil Chemical Company, 2002 WL 1613537 (2d Cir. July 23, 2002), Connecticut Supreme Court Docket No. S.C. 16846.
Under those circumstances this court believes that the issues raised in the defendants' motion for summary judgment are best deferred pending a decision by the Supreme Court. This court does not see a basis for distinguishing between the bank and the individual defendants on this issue.
The motion for summary judgment is therefore granted as to counts one, two, and three, and denied without prejudice as to counts four, five and six.
Bruce W. Thompson, Judge