Slate v. Saxon, Marquoit, Bertoni & Todd

*3DEITS, C. J.

In this breach of contract action, plaintiff appeals from a judgment granting summary judgment in favor of defendants. On appeal, plaintiff argues that defendants breached an agreement to hire him and, in the alternative, that he is entitled to recover damages under a promissory estoppel theory. We affirm.

On review of a summary judgment, we determine whether there are any genuine issues of material fact and, examining the evidence in the light most favorable to the nonmoving party, whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997).

The facts in this case do not appear to be in dispute. Plaintiff worked as a law clerk for the defendant attorneys, beginning in June 1992. In December 1993, apparently after plaintiffs clerkship was completed, defendants offered him a position as an associate attorney. The offer was premised on the condition that plaintiff take and pass the Oregon bar examination. The offer also was contingent on the renewal of defendants’ juvenile court and indigent defense contracts. The offer was not for a fixed term and did not contain a “termination only for cause” provision. Plaintiff accepted defendants’ offer and took the February 1994 Oregon bar examination. Plaintiff passed the bar examination, and defendants’ juvenile court and indigent defense contracts were renewed. In March 1994, defendants advised plaintiff that they were terminating the planned employment arrangement, although plaintiff had not yet begun working for them.

Plaintiff sued defendants, seeking relief for the termination. Plaintiff contends that, because he had accepted defendants’job offer, he took the Oregon bar when he otherwise might not have and did not seek other employment opportunities. Defendants moved for summary judgment. The trial court granted the motion and plaintiff appeals, assigning error to the ruling. We hold that defendants are entitled to judgment as a matter of law, because plaintiff has no right of action under either of his alternative theories.

*4Subject to “some contrary agreement” or to other limitations that neither party suggests are present here, an employment contract implicitly creates an “at will” arrangement that may be terminated by either the employer or the employee at any time, for any reason or for no reason. Lewis v. Oregon Beauty Supply Co., 302 Or 616, 620, 733 P2d 430 (1987). Such a “termination by the employer or employee is not a breach of contract.” Nees v. Hock, 272 Or 210, 216, 532 P2d 512 (1975). The parties agree that the contract of employment between them was an “at will” agreement under the foregoing principles. Plaintiff argues that he nevertheless has a viable breach of contract claim against defendants, because:

“Defendants’ termination of their contract with plaintiff was a breach of an agreement for employment, not a breach of the employment-at-will contract itself. Whether they could or would have fired him after he began working for them is not the issue. Plaintiff reasonably relied on defendants’job offer, and they had reason to know that he would change his plans and incur expenses based on that promise, which he did.”

It is unclear whether defendants accept plaintiffs thesis that there was or could be an “agreement for employment” that was somehow separate from the prospective “employment contract itself.”1 Be that as it may, the crux of defendants’ position is that, since they could terminate the employment itself at will, they also could “withdraw [their] offer of employment” at will, without incurring liability. Plaintiffs brief ably captures the essence of defendants’ argument, to which it then responds as follows:

“Defendants * * * argue that, as a matter of law, plaintiff cannot prevail on his breach of contract claim because defendants’ offer to plaintiff was for employment ‘at will.’ Defendants contend that it is illogical to allow an employee-at-will to recover damages if the employer terminates him *5before he commences work because the employee could not recover contractual damages if he were fired one hour after beginning work. But * * * defendants’ logic does not hold water. The mere fact that defendants could have fired plaintiff at any time after hiring him does not absolve them of all liability for damages caused by their decision to breach their promise to employ him. Contrary to defendants’ assertion, it does matter whether defendants repudiated the contract before plaintiff commenced employment instead of firing him after he began.” (Emphasis plaintiffs.)

Although the question does not appear to have arisen before in any reported Oregon decision, there are numerous cases from other jurisdictions that deal with the actionability of an employer’s termination of an at will employment agreement before the employee has begun his or her performance of the job. Cases related to the issue are assembled in Tracy A. Bateman, Annotation, Employer’s State-Law Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before Employee Actually Commences Employment, 1ALR 5th 401 (1992). In relatively equivalent numbers, the courts deciding those cases have resolved the issue in both of the possible ways, with respect both to claims based on breach of contract and claims based on promissory estoppel.

For purposes of a case like this one, which presents the issues in fairly pristine form (i.e., there are no variations from the at will model in the terms of the parties’ agreement, and the only claimed consequences of defendants’ action is that plaintiff secured his license to practice law in Oregon rather than elsewhere and did not seek alternative employment while he thought he had this job), we agree with the conclusion of the courts that have held that there is no cause of action in these circumstances.

In our view, it would be completely illogical to hold that an employer is exposed to liability if it invokes the right to terminate at will before the employee begins working but is absolved from liability if it defers doing so until immediately after the employee first reports for work. In addition to being illogical, such a holding would also be most undesirable in its consequences. It would serve the interests of no one— least of all new professional persons in search of work — to *6discourage putative employers from discharging them earlier rather than later, under circumstances where there is no possibility that an actual employment relationship will ever exist. To those who might say that we should not base our decision on social or policy concerns of that kind, as distinct from the terms of the parties’ agreement, there is a simple answer: Our decision is completely consistent with the terms of the contract. Conversely, the parties and courts that have urged or acted on the opposite view of desirable policy have generally found it necessary to devise the fiction that one contract is really two in order to attain their objective.

Even given that fiction, however, plaintiffs argument does not succeed. His distinction between a contract for employment and a contract of employment does not alter the fact that, both before the time of performance and after, whatever contractual relationship there was between the parties was one that related to plaintiffs employment by defendants. As we have noted, the general rule in this state is that employment contracts are terminable at will unless they specify a duration or different conditions for or methods of termination. Plaintiff offers no persuasive reason why that general rule should not apply as much to the post-acceptance, but pre-performance, phase of his contractual relationship with defendants as to the post-performance phase, even if the two phases are viewed as two separate contracts. The parties did not specify a duration or conditions of termination other than at will in connection with either phase.

The dissent’s reliance on Taylor v. Mult. Dep. Sher. Ret. Bd., 265 Or 445, 510 P2d 339 (1973), and similar cases, is misplaced. As we recently explained in Horton v. Prepared Media Laboratory, Inc., 165 Or App 357, 997 P2d 864 (2000), those cases stand for the proposition that an employer may not unilaterally revoke benefit or similar programs that their employees have accepted “in exchange for their continued work,” to the extent that the employer’s action purports to impair “any benefits that [an employee has] accrued to the point of revocation.” 165 Or App at 363. In this case, conversely, plaintiff had accrued nothing, except the prospect of retaining an employment relationship with defendant as long as both chose to continue it. Defendants chose to terminate that relationship in the precise manner contemplated by *7the parties’ agreement, and plaintiff has no right of action for breach of contract.

We also hold, although for reasons that appear to be somewhat different from the trial court’s and defendants’, that the court was correct in granting summary judgment as to plaintiffs promissory estoppel theory. Assuming that promissory estoppel ever could provide a basis for recovery under circumstances of this general kind, but see DeJonge v. Mutual of Enumclaw, 315 Or 237, 241, 843 P2d 914 (1992), it cannot here. Among the elements that a plaintiff must establish to prevail on a theory of promissory estoppel is that he actually relied on the other party’s promise with a resulting “substantial change of position.” See Neiss v. Ehlers, 135 Or App 218, 223, 899 P2d 700 (1995).

Given the established facts here2 and our holding that the promise of employment was terminable on the same at will basis that the employment itself would have been, there could have been no reasonable basis for reliance on and no substantial change of position that was attributable to the promise per se. The necessary premise of plaintiffs argument is that he relied on and changed his position in response to the promise that he would be employed for at least an infinitesimal period of time, independently of the promised infinitesimal period of employment itself. Plaintiff alleges that he was damaged “by foregoing other job search activities and refraining from registering for and taking the Massachusetts bar examination and accepting a practice opportunity in that state.” However, the same losses would have been incurred if plaintiff had been discharged immediately after he came to work rather than before. It is circular and not based on reality to argue, as he does, that either his reliance or his change in position was attributable to the promise of at will employment rather than the at will employment contract itself. Under Restatement (Second) of Contracts § 90 (1981), on which the promissory estoppel doctrine in this state is based, *8see Neiss, the doctrine may be invoked “if injustice can be avoided only by enforcement of the promise.” No injustice would be avoided by allowing a party to achieve a remedy for revocation of the promise under circumstances that are logically and practically indistinguishable from a termination of the consummated contract for which no judicial remedy would be available. See Sheets v. Knight, 308 Or 220, 779 P2d 1000 (1989) (stating analogous conclusion with respect to party’s reliance on implied duty of good faith and fair dealing as theory of recovery in connection with termination of at will employment contract).

Plaintiff relies on our statement in Neiss that “promissory estoppel [can] provide a basis for relief under circumstances where traditional contract remedies would not.” 135 Or App at 228. Plaintiff argues that, if he is unable to pursue either a breach of contract or a promissory estoppel claim, then he “is caught in a ‘[C]atch 22’ and cannot recover under either theory.” However, we did not suggest in Neiss that there must be some judicial remedy for every inopportune vicissitude of life that does not constitute a breach of contract, nor does it seem to us to be a “Catch 22” situation that some events — distasteful though they may be — simply cannot result in a successful lawsuit. Unestimable as defendants’ dealings with plaintiff may have been, the trial court correctly ruled that he has no right of action against them.

Affirmed.

Defendants’ brief repeatedly refers to the withdrawal or termination of their offer. In any event, they do not expressly make the possibly meritorious and decisive argument that they made an offer, that defendant accepted it, that there was consideration in the form of mutual promises of future performance, and that there was accordingly only one contract with one implied termination provision that could as well be invoked while the contract was in an executory phase as after performance had begun. We therefore will not decide the case on that ground.

This case does not involve a person with an established career — as distinct from the threshold phase where plaintiff is situated — that he or she is induced to change by a promise of alternative employment. In the unlikely event that such a person would be obliged to or would agree to an at will employment arrangement and ultimately pursues an action of this kind, we will deal with that situation when it arises.