dissenting.
I respectfully dissent from the opinion of the majority. The majority has concluded that Vigil was fired without following the procedures contained in the personnel manual. Under the holding of Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980), Vigil was not entitled to the procedures in the personnel manual.
In Forrester, this Court held that a personnel policy manual constituted an implied contract of employment for a non-probationary (i.e., permanent) employee. The majority opinion, in effect, extends the holding of Forrester to the plaintiff, a probationary employee, without a rational discussion of that ease and without consideration of the concept of “termination at will” as applied to probationary or non-contractual employees. See, e.g., Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963); Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 635 P.2d 992 (Ct.App.1981). By ignoring the law of these cases, the majority have failed “to test the law of the claim * * *,” McCasland v. Prather, 92 N.M. 192, 194, 585 P.2d 336, 338 (Ct.App.1978), under NMSA 1978, Rule 12(b)(6) (Repl.Pamp. 1980).
The majority opinion clouds the prior termination at will cases of this Court without overruling or distinguishing those cases. The majority concludes as a matter of fact that there was a breach of contract. In Gonzales v. United Southwest National Bank, 93 N.M. 522, 602 P.2d 619 (1979), this Court held that an employment contract for an indefinite period with the payment of wages as the only consideration for the performance of duties, was “terminable at the will of either party.” 93 N.M. at 524, 602 P.2d 621. Under Gonzales, there is no contract between Vigil and the defendants other than the conditions of termination at will by either party. These conditions were exercised by the defendants, and there exist no other conditions upon which to base a claim for breach of contract.
I would affirm the trial court on the breach of contract claim and the wrongful discharge claim, and I would reverse the trial court on the claim under 42 U.S.C. Section 1983 (1981).
RIORDAN, J., concurring.