Gaudio v. Griffin Health Services Corp.

CALLAHAN, C. J.,

with whom MCDONALD, J., joins, dissenting. “[A]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.1, 520 A.2d 217 (1987). Pursuant to traditional contract principles, however, the [general] rule of employment at will can be modified by the agreement of the parties. Id. Accordingly, to prevail on the . . . count of his complaint [that] alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated -without just cause. [Id.], 212 n.2; Therrien v. Safeguard Mfg. Co., [180 Conn. 91, 94-95, 429 A.2d 808 (1980)].” (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 14-15, 662 A.2d 89 (1995). Athough as a practical matter, “[b]y 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 *557employee contract claims based on statements made in personnel manuals”; Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199 n.5, 520 A.2d 208 (1987); it is the actual terms of the employee manual, not the absence of disclaiming language, that gives rise to a contractual obligation not to discharge an employee without just cause. The burden, moreover, is on the employee to demonstrate that the terms of the employee manual establish the existence of such a commitment on the part of the employer. Torosyan v. Boehringer Ingelheim, Pharmaceuticals, Inc., supra, 15.

“[T]he determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. As an inference of fact, it is not reversible [error] unless the [trier of fact] could not reasonably have arrived at the conclusion that it reached. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). . . . Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 112-13, 544 A.2d 170 (1988); see also Finley v. Aelna Life & Casualty Co., [supra, 202 Conn. 198] (whether employment manual becomes term of implied contract of employment is question of fact).” (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 15. “[0]ur role [moreover] is not to retry the facts. ‘A finding of fact is clearly erroneous [only] when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993); Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992).” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 16. In light of the factual record in the present case, I agree with the majority that the jury’s finding regarding *558the existence of an implied contract not to terminate the employment of the plaintiff, Brian Gaudio, without just cause and in accordance with the provisions of the policies and procedures manual (manual) of the defendant employer, Griffin Health Services Corporation, was not clearly erroneous.

The defendant, however, challenges the jury’s finding that the defendant breached that implied employment contract on four grounds. Specifically, the defendant claims that: (1) as a matter of law, the manual did not obligate it to provide the plaintiff with three step progressive discipline; (2) the trial court improperly permitted the jury to review de novo the defendant’s determination that the plaintiff had assaulted a patient; (3) there was not sufficient evidence to submit to the jury the count alleging breach of the covenant of good faith and fair dealing; and (4) as a matter of law, the defendant’s statements to the plaintiff were privileged and, therefore, do not constitute a basis for a finding that the defendant defamed the plaintiff.

I

I begin with the defendant’s claim regarding three step progressive discipline. The provisions concerning discipline set forth in the manual provide in relevant part: “When it becomes necessary to impose a formal disciplinary action regarding employees who fail to observe hospital rules, regulations or policies, the steps outlined in this policy shall serve as a guideline for disciplinary action.

“It must be recognized that each situation is different and requires individual evaluation. Among the factors that should be considered in determining the action to be taken are seriousness, frequency and nature of the violation, length of service, work history and customary disciplinary practices.

*559“The policy outlines the progressive steps of the normal disciplinary process. It must be emphasized, however, that discipline may begin at any step in the procedure depending on the seriousness of the offense. . . .

“Following are the steps of the disciplinary process:

“Step I — DOCUMENTED VERBAL WARNING . . .

“Step II — FORMAL WRITTEN WARNING . . .

“Step III — SUSPENSION OR DISCHARGE

“Repeated violations or incidents involving serious misconduct . . . may justify suspension without pay or discharge. . . .

“Suspension or discharge actions may be imposed only with the prior discussion and approval of the Personnel Director and the Administrative staff member responsible for the department.1

“The only condition that would permit suspension of an employee without prior approval is where an action or violation of such severity takes place that the immediate removal of the employee from the hospital premises is indicated. In such situations, the suspension period shall be used for investigation and gathering of facts *560that would result in a decision as to the Disciplinary Action to be taken. ...” (Emphasis added.)

In its instruction to the jury the court stated in relevant part: “The plaintiff claims the defendant hospital breached the contract of employment because ... he did not receive the progressive disciplinary procedure set forth in the contract. . . . The plaintiff . . . claims the personnel manual dealing with employee discipline formed a contract obligating the hospital to follow a three step disciplinary procedure before terminating the plaintiffs employment. . . . [I]f you conclude there was a contract and the contract provided for progressive discipline, then you must decide whether ... all three steps had to be followed." (Emphasis added.) In its answers to the special interrogatories, the jury found that the implied employment contract entitled the plaintiff to progressive discipline and that the defendant had terminated the plaintiffs employment without providing him with the progressive discipline to which he was contractually entitled.

In my view, no reasonable juror could conclude, on the basis of the disciplinary provisions set forth in the manual — provisions that explicitly state that “discipline may begin at any step of the procedure depending on the seriousness of the offense" — that the defendant promised not to discharge an employee for serious misconduct such as a patient assault without first providing that employee with three step progressive disciplinary measures. Consequently, I believe that the trial court’s submission of this issue to the jury was improper and that the jury’s finding that the defendant had breached the implied employment contract by not providing the plaintiff with three step progressive discipline is clearly erroneous.

*561II

The defendant next claims that the trial court improperly permitted the jury to review de novo the defendant’s determination that the plaintiff had assaulted a patient. In its instruction to the jury, the court, over the objection of the defendant, stated: “First, as to just cause . . . [y]ou must decide here whether the hospital had just cause to terminate the plaintiff.

“Now I am not going to review the conflicting evidentiary claims here as to what actually happened in the emergency room on the night in question and the manner in which [Raymond] Gurdak conducted his investigation and whether he did so properly.

“The question becomes how do you apply the just cause concept here?. . . You must examine the investigation procedure . . . and information utilized by the hospital ... in the meeting called by [William C.] Powanda where it was decided to terminate the plaintiff, to determine whether the employer acted in an arbitrary or capricious manner.

“The employer must provide a reason for the dismissal . . . and cannot arbitrarily or capriciously terminate an employee. These considerations are the basis on which you determine whether there was just cause for termination of the plaintiff.

“Nevertheless ... an employer rightfully has managerial discretion in making such decisions and the right to make independent, good faith judgments. In making your decision, you cannot interfere with the legitimate exercise of managerial discretion.

“But again, the words ‘good faith’ and ‘lack of arbitrary’ and ‘capricious’ action are important. Recognizing the right to make good faith determinations about personnel and the need to give management discretion in these areas so that the courts and/or juries don’t start *562micro managing companies, you still must decide whether on the facts of this case the manner in which the investigation was conducted and the decision to terminate that was made was so arbitrary, capricious or lacking in good faith so as to warrant you in concluding that the termination was not made for just cause.” (Emphasis added.) Thus, the trial court’s instruction to the jury indicated that, in deciding whether the defendant had had just cause to terminate the plaintiffs employment, the jury properly could weigh evidence that indicated that the plaintiff did not assault the patient.

In interpreting the parameters of an employer’s implied contractual obligation not to terminate employment without just cause, however, I do not think that an implied agreement to relinquish completely its fact-finding discretion reasonably can be imputed to an employer unless there is specific language indicative of such intent in the employee handbook. In my view, the proper standard for determining the existence of just cause is not whether the employer correctly concluded that the employee had engaged in misconduct; rather, it is whether the employer had a good faith and reasonable belief, based upon substantial evidence, that the employee had done so. See Cotran v. Rollins Hudig Hall International, Inc., 17 Cal. 4th 93, 948 P.2d 412, 414, 69 Cal. Rptr. 2d 900 (1998) (proper inquiry not whether discharged employee committed act that led to discharge, but reasonable belief of employer); Southwest Gas Corp. v. Vargas, 111 Nev. 1064, 1078, 901 P.2d 693 (1995) (same); Kestenbaum v. Pennzoil Co., 108 N.M. 20, 27, 766 P.2d 280 (1988) (same); Simpson v. Western Graphics Corp., 293 Or. 96, 100-101, 643 P.2d 1276 (1982) (same); Baldwin v. Sisters of Providence in Washington, Inc., 112 Wash. 2d 127, 139, 769 P.2d 298 (1989) (same). Thus, I would conclude that the trial court’s instruction allowing a de novo review of the *563existence of just cause at least entitles the defendant to a new trial on the breach of implied contract count.

Furthermore, the reason the defendant proffered for its decision to terminate the plaintiffs employment was that it believed that the plaintiff, a body builder, had assaulted a patient in the emergency room, a belief that, if justified, obviously constitutes just cause for discharge. In my view, no reasonable juror could conclude, on the basis of the information provided to the defendant on the night of the incident by members of the hospital staff, and in light of the patient’s medical record — a record that indicates that the patient sustained lacerations of his face and loosening of his teeth during the incident in the emergency room and, therefore, supports a conclusion that the patient was struck in the face — that the defendant lacked reasonable grounds to believe that the plaintiff had assaulted the patient by striking him in the face. Specifically, various hospital personnel who had witnessed the incident stated to Gurdak that “I saw [the defendant] holding down a patient to the [stretcher]. The patient was fighting and swearing, and spit at the guard. The security guard struck the patient in the face, the patient spit (blood) back at him and the guard struck him again. The patient stated [to the doctor], ‘doctor please don’t go they’re trying to kill me’ that “[t]he patient was extremely violent, I saw the guard hit the patient and the patient spit blood back at him. The guard pushed the patient’s face to the side to try to control him”; that “I saw [the plaintiff] on top of a patient hitting him”; that “ [the plaintiff] put a sheet over [the patient’s] mouth because he was spitting blood, then he jumped on him and hit him in the face”; and that “[the plaintiff] then got on top of the patient and tried to restrain him, the patient got hit with a blow to the head, during the scuffle.” The plaintiff was given an opportunity to respond to these accusations by filing an incident report *564detailing his version of the events that had transpired in the emergency room. The plaintiffs report, which acknowledged that the plaintiff had knocked the patient down, did little to allay the defendant’s reasonable belief that the plaintiff had struck the patient. In my view, the defendant, who knew the people who provided the statements and, therefore, possessed information regarding their credibility that would not be available to a jury, was entitled to credit these statements and disbelieve the plaintiffs version of events. Further, I believe that the information provided to the defendant by witnesses to the incident, as a matter of law, provided the defendant with just cause to terminate the plaintiffs employment. It strikes me that if the defendant had ignored that substantial evidence that the plaintiff had assaulted a patient and instead had retained the plaintiff and permitted other patients to come into contact with him, and if there then had been another similar incident involving the plaintiff, the defendant would have been severely criticized and likely would have been held hable, possibly for punitive damages, for its failure to ensure the safety of the patients it serves. Thus, in my view, the defendant is entitled to a directed judgment on the breach of implied contract count.

Ill

The defendant next claims that there was not sufficient evidence to submit to the jury the count alleging breach of the covenant of good faith and fair dealing. Here, too, I agree. “The two principles that govern [this] claim are undisputed. ‘Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.’ Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). ‘Bad faith means more than mere negligence; it involves a dishonest purpose.’ Id., 237.” (Emphasis *565added.) Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996). The plaintiff did not offer any evidence capable of supporting the conclusion that the defendant acted dishonestly when it terminated the plaintiffs employment. The presence of the defendant’s risk manager at the meeting at which the decision was made to terminate the plaintiffs employment, a prudent and proper exercise of business judgment, and evidence that the defendant was concerned that the patient would bring a lawsuit against the hospital as a result of the incident in the emergency room, are incapable of supporting a conclusion that the defendant acted with “furtive design or ill will” when, on the basis of the information provided to it by hospital personnel in the emergency room on the night of the incident, it terminated the plaintiffs employment. See Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987). In fact, the defendant’s termination of the plaintiffs employment as a result of the incident in the emergency room could only serve to expose the defendant to, rather than shield it from, liability for the plaintiff s actions. In my view, the defendant is entitled to a directed judgment on this count.

IV

Finally, the defendant claims that the trial court improperly submitted to the jury the question of whether the defendant’s statements to the plaintiff were privileged and, therefore, could not constitute a basis for a finding that the defendant had defamed the plaintiff. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 27. Because I believe that the defendant is entitled to a directed judgment on the counts alleging breach of an implied contract and breach of the implied covenant of good faith and fair dealing, I also believe that, as a matter of law, the *566defendant’s statements concerning the plaintiff — statements that were based upon a reasonable belief, supported by substantial evidence, that the plaintiff had assaulted a patient — were privileged. See id., 29; see also Petyan v. Ellis, 200 Conn. 243, 247-48, 510 A.2d 1337 (1986) (employer’s statements in unemployment compensation form regarding reasons for employee’s discharge are absolutely privileged). Consequently, in my view, the defendant also is entitled to a directed judgment on the defamation count. I, therefore, respectfully dissent.

The plaintiff argued at trial that the defendant had breached the implied contract of employment in two additional ways: (1) by discharging him without prior discussion with, and approval by, Janice Yankowski, the defendant’s director of human resources; and (2) by failing to complete a form. The jury interrogatories, however, did not address those alleged procedural breaches. Furthermore, as a matter of law, neither the alleged failure to obtain Yankowski’s approval nor the alleged failure to complete a form is capable of supporting the jury’s award of damages in the present case. Finally, the record reveals that Yankowski was aware of the plaintiffs discharge and was in fact the person who signed the letter informing the plaintiff that his employment had been terminated. Thus, the record does not permit a finding that the defendant discharged the plaintiff without Yankowski’s knowledge and approval.