dissenting.
I respectfully dissent.
In violation of our immutable principles of summary judgment law, the majority opinion has failed to examine the record in the light most favorable to Ms. Ware, and has failed to give her the benefit of all favorable inferences which can reasonably be drawn from the evidence submitted. The majority opinion also fails to recognize that the school district failed to meet its summary judgment burden of producing sufficient evidence to establish the nonexistence of genuine issues of material fact. There are obvious questions of material fact that stem from the crucial issue here: whether the school district breached its employment contract with Ms. Ware by its failure to follow an express school district vacancy-filling policy, which by law was incorporated into and became a binding term of that employment contract. See Keslar v. Police Civil Service Commission, 665 P.2d 937 (Wyo.1983); and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).
After carefully studying the record and - applying this court’s summary judgment principles, I am satisfied that the school district failed to prove that it followed its express policy governing the procedure for filling the custodian vacancy at its high school. That vacancy-filling policy and procedure required the school district to post the notice of the vacancy for five days; this was not done. Further, the policy required that interested employees complete a transfer form, have a principal sign the form, and submit the form to the assistant superintendent. Tom Hoyt, the assistant superintendent’s son, who was ultimately given the job, failed to meet any of these requirements. In contrast, Ms. Ware faithfully met those simple, express requirements; however, she was not chosen and the selection process was contrary to policy. This policy was clearly intended to protect the interest of a classified staff employee like Ware. Cf. Roberts v. Lincoln County School District, No. 1, 676 P.2d 577, 580 (Wyo.1984).
Let us be clear about the facts as I fear the majority opinion has glossed over them. Ms. Ware was employed under a written employment contract as a custodian at the middle school. Tom Hoyt, son of Jim Hoyt who is the assistant superintendent for personnel, was similarly employed as a custodian at the elementary school. Incorporated into both of these employment contracts was a school district policy that governed *879the procedure under which custodian vacancies would be filled.
In August, 1985, Ware learned that Ms. Williams, a custodian at the high school, would be resigning from that position in May, 1986, thus creating a vacancy. Ware also believed her own position might be eliminated. Predictably, she was interested in the upcoming vacancy and asked Jim Hoyt if she could apply. He did not know about Williams’ plan to resign, but he told Ware that when and if the vacancy became a reality, the vacancy would be posted and interested persons could apply in accordance with the express policy and procedure. As this low drama unfolded, Tom Hoyt, the assistant superintendent’s son, did not know until nearly a year later in June, 1986, that Williams’ custodian position at the high school would be vacant or that his elementary school custodian position was, like Ware’s, on the chopping block. The junior Mr. Hoyt states this in his deposition testimony.
During the 1985-86 school year the school district superintendent Scheer learned of Williams’ probable resignation and of the planned elimination of Tom Hoyt’s custodian position at the elementary school. The record is unclear as to an exact date Scheer came to know this information. The record is also unclear about what discussions were held; there was some talk but no action at the administrative level about transferring Tom Hoyt to fill the high school custodian’s vacancy after Williams resigned. The record does not show that such a transfer ever officially or unofficially occurred before June, 1986.
At the school board’s meeting on May 8, 1986, the board accepted Williams’ resignation as a high school custodian. The board then eliminated Ware’s custodian position at the middle school and Tom Hoyt’s custodian position at the elementary school, effective at the end of their contract periods. In Ware’s ease, the contract would expire May 31, 1986.
On May 9, 1986, the day after the board meeting, Mr. Dodd, the middle school principal, told Ware that the board did not renew her contract, but that she could apply for a transfer to the high school, custodian vacancy created by Williams’ resignation. Dodd then called Jim Hoyt, the assistant superintendent for personnel, and also Tom Hoyt’s father, and told the senior Mr. Hoyt that Ware was coming over to see him and apply for that position.
On May 9, 1986, at Jim Hoyt’s office, Ware told him she wanted to apply for the high school custodian vacancy. Jim Hoyt told her she could not because it had already been filled. He would not tell her who had filled it. According to his deposition testimony, Tom Hoyt did not know that his elementary custodian position had been eliminated; did not know that Williams had resigned, leaving a vacancy; had not applied for a transfer so that he might fill the high school custodian position; and had not been told by anyone that he was going to be transferred to that now vacant position.
In response to Jim Hoyt’s telling Ware that the high school custodian vacancy had been filled, Ware asked him how that could be since Williams had only resigned as of the night before. Ware knew that school district policy and procedure required vacancies to be posted for five days and that interested persons had to apply, and complete a transfer form, and have that form signed by a principal and delivered to Jim Hoyt. In terse reply, Jim Hoyt told her, “This administration runs this school district, and we’ll do what we want to do.”
Wanting to know who was filling the vacancy, Ware next talked to Betty Simon, head custodian at the elementary school. Simon told her the vacancy had been filled by Tom Hoyt. Remember, Tom Hoyt still did not know about any of this. According to his deposition testimony, he did not know about the vacant position until the end of the school year in June when Betty Simon, his head custodian, and his father, Jim Hoyt, told him to get over to the high school and tell the principal and head custodian there that he was interested in applying. Tom Hoyt further testified that he never filled out and submitted a transfer form as required by school district policy and procedure.
*880On May 10, 1986, superintendent Seheer called Ware to his office. He told her there had been, some confusion about the vacant custodian position and she would be interviewed for the vacancy after all by the high school principal, Christain, and the head custodian, Roumell. On May 12, superintendent Seheer wrote a letter to Ware (which she received May 13) which stated her contract had not been renewed. He also informed her that she could apply for the vacancy at the high school by completing the required transfer form available at her principal’s office. Ware completed the transfer form and applied for the vacancy.
According to superintendent Scheer’s deposition testimony, when he learned that both Tom Hoyt’s position and Ware’s position were being eliminated and that Williams’ resignation would create a vacancy in which Tom Hoyt and Ware would be interested, he told Jim Hoyt to remove himself from the selection process. Although the record is not clear as to when Seheer told this to Jim Hoyt, one would reasonably infer that surely the school superintendent, of all people, would have known about these position eliminations and the vacancy before the board meeting on May 8 and before Jim Hoyt’s telling Ware that the vacancy had been filled on May 9. These facts and inferences raise glaring questions that go to the heart of Ware’s claim that the school district did not follow its policy and did not treat her fairly-
Additionally, Scheer’s testimony indicates that Christain and Roumell were to interview Ware and Hoyt and inform Seheer of their evaluations. Next, he would review their evaluations, make a recommendation to the board, which would decide who filled the vacancy. Again the record is not clear, but apparently Chris-tain and Roumell interviewed Ware first, then Tom Hoyt. According to Tom Hoyt’s deposition testimony, right after his June interview with Christain and Roumell, they told him he had the job. How could this be if the selection had to go through Seheer and then to the board for the decision? Ware is entitled to a trial to sort this out. There is no record evidence that the board, acting on Scheer’s recommendation, decided in favor of Tom Hoyt.
According to Jim Hoyt’s deposition testimony, he failed to post the notice of the vacancy created by Williams’ resignation; he failed to follow school district policy and procedure. According to his son’s deposition testimony, the son never filled out a transfer form and never submitted the required transfer form. Like father like son — neither one complied with the required school district policy and procedure, and yet Tom Hoyt got the job. Ware, who did comply with the policy in every respect, did not get the job.
The majority opinion concludes that Ware was given an equal opportunity to be selected to fill the vacancy. I fail to find anything in the record to support this conclusion; what I do find in the record is substantial evidence to support the conclusion that Ware was not given an equal opportunity. Since the school district failed in its summary judgment burden as the moving party, I would reverse the trial court and remand for trial.