Opinion
No. 54887-5-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-2-22702-1. Judgment or order under review. Date filed: 08/19/2004. Judge signing: Hon. Anthony P. Wartnik.
Counsel for Appellant(s), Lauren D. Studebaker, Attorney at Law, PO Box 1304, Issaquah, WA 98027-0051.
Counsel for Respondent(s), Robert Melvin Howie, Riddell Williams PS, 1001 4th Ave Ste 4500, Seattle, WA 98154-1192.
The common law at-will employment relationship may be modified by express or implied contract. Here, the express agreement on which Ramon Dysert relies does not modify his at-will status. Accordingly, Airborne Express was legally entitled to terminate his employment. We affirm.
Kuest v. Regent Assisted Living Inc., 111 Wn. App. 36, 50, 43 P.3d 23 (2002), review denied, 149 Wn.2d 1023 (2003).
Airborne hired Dysert in 1998 on an at-will basis. In January 2000, Airborne assigned him to its London office. The parties executed a 'Foreign Assignment — Letter of Understanding' that described his compensation and benefits.
About a year later, after receiving complaints of misconduct, Airborne sent its Vice President of Human Resources to London to investigate Dysert's work performance. The vice president concluded that Dysert committed various acts of misconduct. Airborne terminated Dysert in March 2001.
Dysert sued Airborne, alleging breach of contract and retaliatory discharge. Airborne counterclaimed, alleging conversion, breach of his duty of loyalty, and other matters. In March 2004, Airborne moved for summary judgment, which the trial court granted. Dysert appeals.
AT-WILL EMPLOYMENT
Dysert first argues that the 'Foreign Assignment — Letter of Understanding' he signed creates a genuine issue of material fact whether the letter created an employment contract with a term of 24 months that allowed him to be terminated only for cause. We disagree.
This court may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. A defendant who moves for summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Once that burden is met, the burden shifts to the party with the burden of proof at trial to make a showing sufficient to establish the existence of an element essential to that party's case. The response of the nonmoving party must set forth specific facts and otherwise comply with the requirements of CR 56(e). All reasonable inferences are drawn in favor of the nonmoving party. We review summary judgment orders de novo. Likewise, we may construe contracts as a matter of law.
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Young, 112 Wn.2d at 225.
Young, 112 Wn.2d at 225-26.
Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
CR 56(c); Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).
Postlewait Constr., Inc. v. Great American Ins. Companies, 106 Wn.2d 96, 100, 720 P.2d 805 (1986).
Employment relationships in Washington are generally terminable at-will. Thus, an employer may discharge an at-will employee for 'no cause, [or] good cause without fear of liability.'
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984).
Thompson, 102 Wn.2d at 226.
'[C]ommon law at-will employment relationship[s] may be modified by contract, express or implied, but such modification[s] [are] subject to the usual rules applicable to contract formation.' An employee's subjective understanding that he would be discharged only for cause is insufficient to establish an implied contract of employment to that effect. It is undisputed that Dysert was an at-will employee. To overcome the motion for summary judgment, Dysert must illustrate that the letter of understanding on which he relies changes his at-will employment status. The letter states in relevant part:
Kuest, 111 Wn. App. at 50.
See Thompson, 102 Wn.2d at 224.
The following will serve as a letter of understanding with regard to your relocation to London on special assignment The assignment will be for a minimum of 24 months Upon successful completion of your assignment, the company will relocate you. Upon successful completion of your assignment, you will be offered another position within ITS.
(Emphasis added.)
The above language specifies where Dysert's place of work would be for a minimum period of 24 months. Moreover, it makes clear that successful completion of the assignment was a condition to being relocated elsewhere. It says nothing about changing his then-existing at-will status to something else. Thus, this letter cannot serve as a basis for changing his employment status.
Dysert cites Gaglidari v. Denny's Restaurant, Inc., to argue that the letter of understanding created a contract that contains new or additional grounds for termination. In Gaglidari, a bartender signed for receipt of an employee handbook that contained different review procedures for termination than the original terms of employment. The court concluded the acceptance of the new procedures modified the at-will nature of a bartender's employment and created a question of law for the court. The case is not helpful. Here, the letter of understanding contained no additional guidelines providing grounds for termination or different employment terms from Dysert's original at-will status. Dysert next argues he cannot be terminated for any reason because the letter of understanding specifies he will be employed by Airborne for at least 24 months. The letter merely indicates that Dysert accepted a minimum 24 month assignment during his ongoing at-will employment with Airborne. The terms in the letter did not modify his employment status. Dysert also cites Dirk v. Amerco Marketing Co. of Spokane, for the proposition that an ambiguous term in an employment agreement should be construed against the drafter. Dysert claims that the letter of understanding is ambiguous and should be interpreted to specify a 24 month period during which he will be employed. But the letter of understanding is not ambiguous. It did not specify a length of time that Dysert would be employed.
117 Wn.2d 426, 815 P.2d 1362 (1991).
Gaglidari, 117 Wn.2d at 432-33.
Gaglidari, 117 Wn.2d at 432-33.
Wlasiuk v. Whirlpool Corp., 81 Wn. App. 163, 170, 914 P.2d 102 (1996).
88 Wn.2d 607, 565 P.2d 90 (1977).
Accordingly, there is no genuine issue of material fact whether the letter of understanding modified Dysert's employment status.
CAUSE TO TERMINATE
Dysert argues there is a genuine issue of material fact whether just cause existed to justify his termination. We disagree.
Because we hold that Dysert was at all times an at-will employee, Airborne was free to terminate Dysert's employment for 'no cause, [or] good cause, without fear of liability.' Moreover, there is no argument here that the firing fell within the narrow excerption that applies when public policy is at issue. Accordingly, there is no genuine issue of material fact whether Airborne had 'just cause' to terminate Dysert.
Thompson, 102 Wn.2d at 226.
COUNTERCLAIM
Dysert fails to assign error to the trial court's judgment on Airborne's counterclaim for conversion. Accordingly, any argument is waived and the judgment is affirmed.
See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
We affirm the summary judgment order.
For the Court: Cox, Kennedy, Appelwick, JJ.