dissenting.
At about the same time this Court released its opinion in the case of Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989), Dr. Manuel Leon was considering applying for tenure at Boise State University where he had been an assistant professor since 1985. In Metcalf, District Judge J. William Hart had entered a summary judgment in favor of the employer, Intermountain Gas Co., just as District Judge D. Duff McKee did in Dr. Leon’s case several years later. The circumstances of the two. cases are similar.
The Court in Metcalf, per Justice Bakes, reversed the district court, holding that triable issues of material fact did exist as to whether Intermountain Gas had breached its employment contract with Metcalf, and likewise held that Intermountain Gas had breached an implied covenant of good faith and fair dealing. Recognizing its retreat from the earlier holding in MacNeil v. Minidoka Memorial Hospital, 108 Idaho 588, 701 P.2d 208 (1985), the Metcalf Court noted, “[I]n the absence of an agreement between the employer and the employee limiting the employer’s (or the employee’s) right to terminate the contract at will, either party to the employment agreement may terminate the relationship at any time or for any reason without incurring liability.” 116 Idaho at 624, 778 P.2d at 746 (quoting MacNeil, 108 Idaho 588, 701 P.2d 208 (1985)). Citing Harkness v. City of Burley, 110 Idaho 353, 356, 715, P.2d 1283, 1286 (1986), the Court added:
However, such a limitation on the right of the employer (or the employee) to terminate the employment relationship ‘can be express or implied.’ ... A limitation may be implied if, from all the circumstances surrounding the employment relationship, a reasonable person could conclude that both parties intended that the employer’s (or the employee’s) right to terminate the employment relationship-at-will had been limited by the implied-in-faet agreement of the parties. See, e.g., Spero v. Lockwood, Inc., 111 Idaho 74, 721 P.2d 174 (1986); Wagensetter v. Scottsdale Mem. Hospital, 147 Ariz. 370, 710 P.2d 1025, 1036 (1985) (en banc) (‘An implied-in-fact contract term ... is one that is inferred from the statements or conduct of the parties.’); 1 A. Corbin, § 17, at 38 (1960).
116 Idaho at 624, 778 P.2d at 746.
The Metcalf Court, Justice Bakes authoring, with Justice Johnson concurring, and Justice Huntley concurring in the result and writing, with which Justice Bistline concurred,1 recognized that:
‘[A]n employee’s handbook can constitute an element of the contract.’ Harkness v. City of Burley, 110 Idaho 353, 356, 715 P.2d 1283, 1286 (1986); Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (1984). Unless an employee handbook specifically negates any intention on the part of the employer to have it become a part of the employment contract, a court may conclude from the review of the employee handbook that a question of. fact is created regarding whether the handbook was intended by the parties to impliedly express a term of the employment agreement. Spero v. Lockwood, supra; Harkness v. City of Burley, supra; Johnson v. Allied Stores Corp., supra; Wagenseller v. Scottsdale Mem. Hospital, supra.
In the present case [Metcalf] the employee handbook was silent on the question of whether the terms and employee benefits set out in the handbook affected or otherwise modified the employer’s right to terminate the employment relationship at will. Accordingly, we conclude, after considering all the circumstances of this case, that a material issue of fact exists regarding whether, by providing for accumulated sick leave benefits, the employer impliedly agreed with the employee that the employment relationship would not be terminated or the employee penalized for using the sick leave benefits which the employee had accrued. ‘The trier of fact must determine *372whether “a contract existed between the parties by virtue of the ... policy manual.” ’ Harkness v. City of Burley, 110 Idaho at 356, 715 P.2d at 1286.
116 Idaho at 625, 778 P.2d at 747 (emphasis added). The partial summary judgment in Metcalf was reversed by this Court and the cause was remanded for trial.
However, a careful reading of the reporter’s transcript of the trial court proceedings discloses that Dr. Leon was unjustly dealt with, first by Dr. Anooshian and BSU, and then by the district court in entering a summary judgment against Dr. Leon and by not allowing certain triable issues of material fact to be put before a jury for determination. Dr. Leon argues that an annual evaluation was not performed prior to Anooshian making a negative recommendation on his becoming tenured. Even if we cannot say with certainty that this occurred, Anooshian appears to have led Dr. Leon to believe that he would be considered for tenure and then proceeded to recommend that he not be tenured. The jury was entitled to hear the evidence Dr. Leon intended to present as to why he was treated unfairly. For these reasons, I respectfully dissent from the majority’s opinion in this case.
The instant controversy, Leon v. Boise State University, culminated in the above-mentioned entry of a summary judgment in favor of defendant, Boise State University, and against the plaintiff, Dr. Manuel Leon. The district court’s decision dismissed Dr. Leon’s various claims, i.e., breach of contract, denial of due process of law, breach of the covenant of good faith and fair dealing, and intentional interference with contract. This Court’s majority opinion sets forth the background and prior proceedings relating to the litigation, and which are germane hereto and need not be repeated.
. Justice Shepard sat, but did not participate due to his untimely death.