Lewis v. Equitable Life Assurance Society of the United States

KELLEY, Justice

(dissenting):

Even though I concede that it is not difficult to conclude that the terminations *’ of these four employees was done in a shoddy, callous, and perhaps even deceiving manner, I feel constrained to dissent. with today’s court opinion.

Unless the employee handbook delivered to these four employees modified the relationship between the parties, the employment of the respondents by Equitable was an at-will relationship. In Pine River State Bank v. Mettille, 333 N.W.2d 62(Minn.1983), we specifically held that in order to change an at-will employment contract into a unilateral employment contract *894terminable only for cause, the words used by the employer in an employee handbook must set out in “definite language” an offer for a unilateral contract for procedures to be followed in job discipline and dismissals. Id. at 630. However, in Pine River, we also noted that general statements of policy do not meet the contractual requirements sufficient to constitute an offer. Id. at 626. See also Degen v. Investors Diversified Services, Inc., 260 Minn. 424, 110 N.W.2d 863 (1961).

A comparison of the discipline and dismissal provisions in the Pine River employment manual with those contained in Equitable’s employment handbook demonstrates that the vague language in the Equitable manual fails to approach the definiteness requirement set forth in Pine River. The discipline and dismissal provisions in Pine River provided for a definite, explicit, and detailed four-step procedure.

If an employee has violated a company policy, the following procedure will apply:
1. An oral reprimand by the immediate supervisor for the first offense, with a written notice sent to the Executive Vice President.
2. A written reprimand for the second offense.
3. A written reprimand and a meeting with the Executive Vice President and possible suspension from work without pay for five days.
4. Discharge from employment for an employee whose conduct does not improve as a result of the previous action taken.
In no instance will a person be discharged from employment without a review of the facts by the Executive Officer.

333 N.W.2d at 626, n. 3.

In contrast to this precisely delineated termination procedure, the Equitable Employee Manual vaguely asserts: “Except for misconduct serious enough to warrant immediate dismissal, no employee will be discharged without previous warning and a period in which to bring performance up to a satisfactory level.” In my opinion, the language in the Equitable handbook amounts to nothing more than a general statement of policy which, as indicated in the majority opinion, is legally insufficient to change an at-will employment relationship to one where discharge may be only for cause. I cannot conclude that the nebulous language in the Equitable Employee Manual “clearly limits the right to freely dismiss employees.”

While the majority concedes the company’s handbook “does not contemplate every possible question regarding dismissal procedures,” the language is “definite enough to permit a jury to conclude that plaintiffs received certain contractual rights.” Although admitting the precise “nature of those rights is unclear,” the majority opines that it is for the jury to determine the intent of the parties, or, as I understand it, to determine whether the language is sufficiently definite.1

In Pine River there was no question that the termination and disciplinary proceedings were sufficiently definite so as to constitute an offer. The jury only needed to decide whether the bank intended the handbook to be binding on it, id. at 630, n. 6, and, if so, whether it was breached. I suggest that whether the Equitable handbook dismissal language is sufficiently definite to constitute an offer is a question of law for the court, not for the jury which has the duty to decide issues of acceptance, consideration, breach, and, if appropriate, damages. See, e.g., Hunt v. IBM Mid America Employees Federal Credit Union, 384 N.W.2d 853, 856 (Minn.1986).

In holding that the jury could have concluded that the discipline and dismissal pro*895visions “read as a whole” limited the company’s rights to terminate at-will employees, the majority permits the jury to find that dismissal may be only for cause. The employees handbook issued by Equitable is completely devoid of any reference, directly or indirectly, to “dismissal for cause.”

An oft repeated aphorism in the law is that “hard cases make bad law.” This is such a case. The conduct of the superiors, arguably prompted in some degree, at least, by the obduracy of the employees in refusing to comply with company expense account reporting policies, was, on the whole, despicable. Fortunately, such egregious conduct by superiors towards employees in these days is rare, but when present it is understandable why juries and judges sometimes are tempted to extend judicial rules to afford those victims vindication and compensation. As much as these results are appealing to one’s sense of justice in this case, I fear the consequences of today’s decision -will allow future juries and courts, after the fact, to strain amorphous, vague language expressing general policy into a definite contract in which the employer is subject to liability unless the employer can prove just cause. I would not go beyond Pine River. I would hold that before a unilateral contract can arise providing for due process type discipline and dismissal procedures, the language in the alleged offer, whether contained in an employee manual or other type of communication to the employee, must be sufficiently definite to meet the standard set out in Pine River as a matter of law. Further, whether the language is so definite should be a question of law for the court to decide. Otherwise juries and courts will be creating contracts, long after the inception of the employment, containing termination and discipline procedures never objectively contemplated by either party at the time of the institution of the relationship.

I likewise disagree with the majority opinion as it addresses the defamation claims of the respondents. At the time of their discharge, respondents were told by the company that the reason for the discharge was “gross insubordination.” Notwithstanding the crudeness with which the supervisory employees handled the situation, still the fact remains that, over the course of three months, respondents intentionally, adamantly, and repeatedly refused to obey numerous company requests to submit revised travel expense reports that complied with previously established company policies for such accounts. Thus, from the standpoint of the company supervisor, that conduct is appropriately categorized as “gross insubordination.” Nevertheless, the only communication of that was to the respondents themselves. There was no publication of the reason for the discharge to others by Equitable. Indeed, it was Equitable’s policy to not release any information on former employees, other than the dates of employment and the last job title, unless the former employee authorized, in writing, the release of additional information. Moreover, the company did not challenge any of the applications of any of these respondents when they made unemployment compensation claims.

The company neither published nor communicated its reason for termination to any person other than the employees themselves. It is clear that there was publication; but the publication was made by the employees themselves in communications to prospective employers. Generally, such publication amounts to insufficient publication to sustain a defamation claim. See Restatement (Second) of Torts § 577(1) (1977). The majority opinion holds that the “self publication” in this case comes under a narrow exception to the general rule that communication of a defamatory statement to a third person by the person defamed is not actionable. Very few courts of this nation have recognized this exception. Those few courts who have recognized it have held that for a defamatory statement to be actionable, the claimant must show more than that the alleged defamer “knew *896or should have known” that the utterances and their publication would come to the attention of a third person. See Belcher v. Little, 315 N.W.2d 734 (Iowa 1982). In addition, there must exist a strong compulsion upon the defamed person to disclose the defamatory statement to third parties. Likewise, there must be showing that such compulsion was reasonably foreseeable by the wrongdoer at the time the statement was published. Id. at 738. What constitutes compulsion must be decided by the finder of fact. Id.

In this case, the trial court’s instruction on when and under what circumstances the narrow exception of “self publication” applies, even if technically correct, was, at best, confusing. For example, on two separate occasions in the instructions, the trial court generally discussed “self publication” and “compulsion.” On both occasions, the instruction was either incomplete or erroneous. In a third instance, in point of time considerably removed from the other two, the court instructed the jury that if it found the defamatory language was “communicated to someone other than the plaintiffs by Equitable Life or by the plaintiffs, themselves * * * compensatory damages are presumed.” (Emphasis added.) Thus, on that occasion, the jury was reminded neither of “compulsion” nor of the requirement that Equitable should have realized that disclosure would be compelled to third parties.

Recognition of the so-called “doctrine” of “self publication” under circumstances similar to this case discourages plaintiffs from mitigating damages, as pointed out by the dissenter in the court of appeals. Lewis v. Equitable Life Assurance Society of the United States, 361 N.W.2d 875, 884 (Minn.Ct.App.1985) (Forsberg, J., dissenting). For example, respondents here originally sought to have “gross insubordination” expunged from their records as part of declaratory relief. Obviously, such an ex-pungement would work against their self interest because, if granted, would mitigate, if not eliminate, the basis of recovery of future damages. Predictably, therefore, respondents chose to dismiss this claim for declaratory relief because expungement would lower, if not eliminate, recovery of future defamation damages.

In my view, the majority opinion gives insufficient attention to the ramifications of the mitigation problem. The opinion asserts the nonexistence of such a problem “if liability * * * is imposed only where the plaintiff was in some significant way compelled to repeat the defamatory statement and such compulsion was, or should have been, foreseeable to the defendant.” In claims brought by ex-employees against employers for defamation when the employment was terminated for “incompetence,” “dishonesty,” “insubordination” or for any other reason carrying a connotation of immorality, ineptness, or improbity, “compulsion” will almost automatically be found in connection with future job applications by the discharged employee. Such “compulsion” would, with certainty, be foreseeable by the ex-employer. Moreover, I cannot agree with the assertion in the opinion that: “Properly applied, the doctrine of compelled self-publication does not unduly burden the free communication of views or unreasonably broaden the scope of defamation liability.” To the contrary, I suggest that today’s ruling substantially expands the scope of the defamation action. Now, the only way an employer can avoid litigation and the possible liability for substantial damages, is to cease communicating the reason it felt justified the termination, not only to third persons, but even to the employee himself or herself.

For these reasons, I would reverse.

. When employees are relying exclusively on language contained in a manual furnished by an employer in attempting to establish a contract providing for disciplinary or termination procedures, as they are here, whether language used in the manual is sufficiently definite to constitute a contractual offer is for the court. Hunt v. IBM Mid America Employees Federal Credit Union, 384 N.W.2d 853, 856 (Minn.1986).