Ewalt v. Coos-Curry Electric Cooperative, Inc.

120 P.3d 1288, 202 Or. App. 257, 2005 Ore. App. LEXIS 1353
CourtCourt of Appeals of Oregon
DecidedOctober 19, 2005
Docket03CV0260; A124096
StatusPublished
Cited by1 cases

This text of 120 P.3d 1288 (Ewalt v. Coos-Curry Electric Cooperative, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ewalt v. Coos-Curry Electric Cooperative, Inc., 120 P.3d 1288, 202 Or. App. 257, 2005 Ore. App. LEXIS 1353 (Or. Ct. App. 2005).

Opinion

LANDAU, P. J.

Plaintiff worked as chief accountant for Coos-Curry Electric Cooperative, Inc. When the cooperative terminated his employment, he initiated this action against his employer and his supervisor (collectively, defendants) for breach of contract, wrongful discharge, and intentional interference with economic relations. The trial court entered summary judgment in favor of defendants dismissing all claims. Plaintiff appeals, arguing that there is at least a genuine issue of material fact as to each of his claims. We affirm, writing only to discuss the dismissal of the breach of contract claim.

On review of a summary judgment, we examine the record in the light most favorable to the nonmoving party to determine whether there are genuine issues of material fact and whether the moving party was entitled to judgment as a matter of law. ORCP 47 C; Clark v. DSU Peterbilt and GMC, Inc., 193 Or App 17, 19, 87 P3d 1159, rev den, 337 Or 282 (2004).

In April 1999, plaintiff applied for a position as chief accountant at the cooperative. The application included, among other things, an at-will employment provision:

“3. I understand and agree that if I am offered and accept a position, I may resign or be terminated, with or without cause or notice, at any time;
“4. I agree to conform to all existing and future Coos-Curry Electric Cooperative policies and rules, and I understand that such policies and rules may be changed, interpreted, withdrawn or added to as the company deems appropriate.”

Plaintiff completed the application, acknowledged that he had read the foregoing, and signed it.

In May 1999, the cooperative hired plaintiff for the position. The cooperative’s general manager and plaintiffs supervisor, Amtz, gave plaintiff a copy of the cooperative’s policies, as promulgated by its board of directors. Among the policies was Policy Bulletin No. 41, which described certain work rules to be enforced by supervisors. The bulletin began with a general statement of policy:

[260]*260“These work rules are to be enforced fairly and uniformly, and not in an arbitrary manner by supervisors. Employees are entitled to adequate notice and warning of the consequences of their behavior and a fair and objective investigation of the facts must be made before discipline is administered. Where immediate action is required, an employee may be suspended, pending an investigation. Discipline short of discharge shall be used whenever possible for violation of these rules.”

There followed a statement that “violation of any of these rules will constitute just cause for disciplinary action up to and including discharge.” The bulletin then listed 22 different violations, any one of which constituted “just cause for disciplinary action up to and including discharge.” The bulletin closed with a chart captioned “GUIDELINES FOR DISCIPLINARY ACTION BY SUPERVISORS FOR VIOLATIONS OF WORK RULES.” Those guidelines suggested various disciplinary actions for first, second, or third violations of each of the 22 work rules.

Plaintiffs work entailed maintenance of the cooperative’s general ledger, and overseeing its accounting, billing, and payroll functions. He also, at least nominally, supervised five employees.

During 2002, Arntz participated in preparing the cooperative’s financial statements and reports. Among other things, he separated out from the statements certain financial data relating to a subsidiary of the cooperative. Plaintiff did not object to that action.

On August 26, 2002, Arntz terminated plaintiff from his position based on “deficient job performance.” At the time, plaintiff believed that defendants had terminated him because he knew that they had taken improper actions concerning the preparation of the cooperative’s financial statements. Up to that point, he had never discussed that concern with Arntz because he felt “intimidated.”

Plaintiff initiated this action asserting, among other things, a claim for breach of contract. In that claim, he alleged that he and the cooperative had entered into an employment contract under which he could be terminated only for just cause.

[261]*261Defendants moved for summary judgment on the ground that plaintiff was an at-will employee. According to defendants, plaintiff signed an employment application that expressly provided that he could “resign or be terminated, with or without cause or notice, at any time.” Plaintiff responded that the employment application had, in effect, been superseded by Policy Bulletin No. 41, which he characterized as creating an employment contract that guaranteed that he could be terminated only for just cause. Defendants rejoined that Policy Bulletin No. 41 was, by its terms, a set of “guidelines” to be used by supervisors such as plaintiff in managing employees. It did not, defendants argued, even apply to the supervisors themselves, such as plaintiff.

The trial court granted defendants’ motion. In its letter opinion, the court explained that the application unambiguously stated that plaintiff could resign or be terminated at any time with or without cause or notice. The court rejected plaintiffs contention that the at-will employment agreement had been superseded by Policy Bulletin No. 41. The court explained that the bulletin contained “guidelines and not absolute rules,” which, plaintiff had agreed, defendants had the discretion to interpret and apply as they saw fit in the absence of bad faith. Noting that plaintiff had not alleged or demonstrated bad faith, the court ordered that the breach of contract claim be dismissed.

On appeal, plaintiff essentially renews the arguments that he unsuccessfully advanced to the trial court. He argues that Policy Bulletin No. 41 created an employment contract under which his employment was governed by a just cause provision. Defendants, too, essentially renew their arguments. They contend that the application plainly states that plaintiff was an at-will employee and that nothing in Policy Bulletin No. 41 states the contrary. Defendants argue that the bulletin instead sets out nonenforceable “guidelines” that, in any event, expressly are to be applied by supervisors to employees. Plaintiff replies that, although the bulletin may not apply to “supervisors,” in fact, he was not a “supervisor,” as that term is defined in state and federal wage and hour laws. Defendants respond that whether plaintiff was a “supervisor” within the meaning of state or federal wage and horn laws is irrelevant, because they regarded him as a [262]*262supervisor for the purposes of the bulletin’s applicability and, as plaintiff agreed, they had discretion to interpret the bulletin in that fashion.

As a general rule, an employment contract creates an at-will arrangement that may be terminated by either the employee or the employer at any time, for any reason or for no reason. Lewis v. Oregon Beauty Supply Co., 302 Or 616, 620, 733 P2d 430 (1987). Employers, however, are free to alter the usual at-will condition of employment by an agreement to the contrary. Id.

In this case, the employment application unambiguously states that plaintiff was hired with the understanding that he “may resign or be terminated, with or without cause or notice, at any time.” Plaintiff acknowledged that he had read that statement in the application and signed the application that contained it.

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120 P.3d 1288, 202 Or. App. 257, 2005 Ore. App. LEXIS 1353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewalt-v-coos-curry-electric-cooperative-inc-orctapp-2005.