Merritt v. Edson Express, Inc.

SABERS, Justice

(dissenting).

This is another employment termination case in which the evidence is being viewed most favorably to the moving party, the employer, and against the non-moving party, the employee. This is contrary to all of the major South Dakota cases on summary judgment. Groseth International, Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987); Wilson v. Great Northern Railway, 83 S.D. 207, 157 N.W.2d 19 (1968).

For the purpose of summary judgment, the evidence must be viewed most favorably to the non-moving party. In viewing this evidence most favorably to Merritt, he was hired by the terminal manager who told him “the job was here for as long as you want it.” In reliance upon the hiring, Merritt moved himself and his family from Billings, Montana to Rapid City, South Dakota because drivers for this route would be stationed in Rapid City.

The employer claimed its Rapid City-Billings route began experiencing problems shortly after Merritt was hired. The employer decided to restructure the route, which resulted in the elimination of Merritt’s position. Merritt was discharged eighty-eight days after he began working for employer. The terminal manager testified that employer’s standard probationary period is ninety days, although there is no written policy establishing a specific time period and the application did not state the fact or the length of the probationary period.

The printed language of the application form stated: “... it is understood that if hired, I may be on a probationary period during which I may be discharged without recourse.” Merritt concedes that the printed language of the application form provided that employment may be subject to a probationary period, but insists that there was no probationary period in his case.

Merritt also claims that the employer did not give the Rapid City-Billings route sufficient time to become successful, and that employer’s decision to restructure the route was a pretense to eliminate Merritt's position. This claim is somewhat speculative. However, Merritt testified that he would have been willing to move back to Billings when the route was changed.

As the Michigan Supreme Court stated in Toussaint v. Blue Cross & Blue Shield, *531408 Mich. 579, 292 N.W.2d 880 (1980), numerous questions exist for jury consideration in actions alleging breach of an oral contract of employment. Some are:

1. Whether, the conversations between an employer and an employee rise to the level of an agreement for a contract of employment which could be terminable only for cause.
2. The length and nature of the contract between the employer and the employee.
3. The existence of a probationary period, if any.
4. If a probationary period was involved, whether Merritt’s conduct satisfied conditions of probation.
5. Whether Merritt relied on statements of Edson in moving his family to Rapid City from Billings.

All of these questions present genuine issues of material fact and are sufficient to preclude summary judgment in this action. Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 224 (S.D.1988) (Sabers, J., Blote v. First Fed. Sav. & Loan, 422 N.W.2d 834, 838 (S.D.1988) (Sabers, J., dissenting); Groseth, supra; Wilson, supra. dissenting);

In addition, termination on the eighty-eighth day of a ninety-day. probationary period without any reference to Merritt’s work performance, may violate the employer’s obligation of good faith and fair dealing. See my special writings in Butterfield v. Citibank, 437 N.W.2d 857, 860 (S.D.1989); Breen, supra; Johnson v. Kreiser’s, Inc., 433 N.W.2d 225, 228 (S.D.1988); French v. Dell Rapids Community Hospital, 432 N.W.2d 285, 292 (S.D.1988); Larson v. Kreiser’s, Inc., 427 N.W.2d 833, 835 (S.D.1988); Blote, supra.