(dissenting).
I respectfully dissent. The majority determines as a matter of law the hospital’s employee handbook did not create an employment contract. I disagree.
The supreme court clearly defined the requirements necessary to determine an employer handbook is a contract in Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 456 (Iowa 1989). A handbook is a contract if it is “sufficiently definite in its terms to create an offer,” if there is an acceptance, and if the employee has continued working to provide consideration. Id. In Fogel, the court noted Grinnell College’s handbook was not definite enough to constitute an offer of continued employment:
The first sentence of the “dismissal” section unambiguously states that an employee may be terminated “for reasons not prejudicial to the employee.” Although the handbook goes on to state the notice which the college would strive to provide depending on the circumstances necessitating dismissal, no guarantee of permanent employment is made or even suggested. No restriction to dismissal “for cause” can be found. The handbook is silent on the meaning of “misconduct” giving rise to the college’s prerogative of immediate dismissal.
Id. The court found the Grinnell handbook was not a contract.
The hospital handbook, on the other hand, is very specific and definite. With regard to termination procedures, it states:
TERMINATION
Since employment in this hospital is based on mutual consent, either the employee or employer is privileged to terminate employment. It is important for the employee record that termination be brought about properly. It is also important for the hospital that it have adequate advance knowledge of an employee’s desire to terminate. There are several types of termination procedures as described below:
⅝ $ ⅝ ⅜ % *
4. DISMISSAL — This is an immediate termination for serious reasons imposed by authority of the supervisor or
Department Head. All such terminations are automatically reviewed by the Personnel Director and reported to the Administrator. There are two general conditions that can subject an employee to dismissal or suspension. The first is refusal to carry out the reasonable directions of supervisors; the second is serious misconduct. Employees who are dismissed will not receive notice or pay in lieu of notice. (Emphasis added.)
The other types of termination procedures provided for in the handbook are resignation, quitting, involuntary termination, and termination during probationary period.
I believe the employer’s specific guidelines reflect that the handbook is a contract. Unlike the Grinnell handbook, the hospital handbook contains a restriction for “serious misconduct” and a list of infractions which may result in dismissal. The hospital testified it relied on reason number twenty-two of that list, “[a]ny action which jeopardizes the health, safety, or well-being of patients, visitors, or fellow employees.” All elements of a contract are present giving rise to a cause of action for its breach.
Moreover, David Holcomb, the hospital’s agent, testified the hospital was required to have just cause before it terminated Palmer and that the personnel manual set out the proper procedures. In addition to this admission, Palmer testified she was told by the hospital during her training that the employment manual defined her employment terms. I believe this testimony showing the conduct and beliefs of the parties is more important than the wording of the handbook (stating it is not a contract) on which the majority relies. The handbook and testimony evidence generate a question for a jury to decide.
I find the trial court properly instructed the jury as to Palmer’s burden to prove her employment was defined by the manual. Defendant did not object to this instruction. The trial court made no error of law, and there was sufficient evidence to generate a jury question. The jury did, in fact, find in Palmer’s favor. I believe the hospital’s *99motion for judgment notwithstanding the verdict was properly overruled. I would affirm the trial court on all issues and, accordingly, remand this case for a new trial to determine solely the proper amount of damages based upon the prior jury finding that Palmer’s employment was wrongfully terminated.
OXBERGER, C.J., joins this dissent.