(specially concurring).
{29} New Mexico law is developed and it covers the issue of the propriety of summary judgment in this case. We do not need to invoke law review articles or pull in foreign law.
{30} Reversal because a genuine issue of material fact exists does not require us to venture beyond our existing law and discuss why employers “continue to issue handbooks,” what “policy manuals provide,” how “formal written policies are perceived,” what goals “systems of personnel rules serve,” whether “employees who perceive that they will be treated fairly ... may be less likely to unionize,” how employers use disclaimers with discipline systems to create a give-but-take-back approach, and whether an at-will employment relationship is a contract. The majority states that “courts have declined to give dispositive effect to disclaimers,” ignoring the fact that a disclaimer was given dis-positive effect by our Supreme Court in Garrity v. Overland Sheepskin Co. of Taos, 1996-NMSC-032, ¶12, 121 N.M. 710, 917 P.2d 1382. See also Paca v. K-Mart Corp., 108 N.M. 479, 481, 775 P.2d 245, 247 (1989).
{31} In New Mexico, an employee is presumed to be an at-will employee in the absence of an express or implied contract. Hartbarger v. Frank Paxton Co., 115 N.M. 665, 672, 857 P.2d 776, 783 (1993); Kiedrowski v. Citizens Bank, 119 N.M. 572, 575, 893 P.2d 468, 471 (Ct.App.1995). The existence of an implied contract that restricts the unfettered discharge power rebuts the presumption. Hartbarger, 115 N.M. at 672, 857 P.2d at 783; Kiedrowski, 119 N.M. at 575, 893 P.2d at 471. “An employer creates expectations by establishing policies or making promises. An implied contract is created only where an employer creates a reasonable expectation. The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon.” Hartbarger, 115 N.M. at 672, 857 P.2d at 783. A written policy may not create any reasonable expectation giving rise to an implied contract when the policy contains an “express reservation of the right to terminate an employee for any reason.” Garrity, 1996-NMSC-032, ¶ 12, 121 N.M. 710, 917 P.2d 1382.
{32} Circumstances that create an objectively reasonable expectation that employees will not be terminated except through a fair procedure can give rise to such an implied contract. Kiedrowski, 119 N.M. at 575, 893 P.2d at 471. In looking at the totality of circumstances surrounding a discharge, an employee handbook containing disciplinary or termination procedures may be considered when determining the question of objectively reasonable expectations. Id. at 575-76, 893 P.2d at 471-72. This is true although the handbook contains a termination-at-will type of disclaimer, “where the employer’s conduct reasonably leads employees to believe that they will not be terminated without just cause and a fair procedure.” Id. at 575, 893 P.2d at 471. What constitutes those objectively reasonable expectations is ordinarily a jury question. Id.
{33} In this case, the evidence to support an implied contract consists of provisions in the ENMMC employee handbook, and ENMMC’s having provided Plaintiff with the employee handbook and telling her that the handbook would govern her employment. See Majority Opinion, ¶¶ 2-3. The question is simply whether a genuine issue of material fact exists as to whether these circumstances give rise to a reasonable expectation that ENMMC would conform to the fair hearing procedure before discharging Plaintiff. Garrity, 1996-NMSC-032, ¶12, 121 N.M. 710, 917 P.2d 1382; Hartbarger, 115 N.M. at 672, 857 P.2d at 783; Newberry v. Allied Stores, Inc., 108 N.M. 424, 427, 773 P.2d 1231, 1234 (1989).
{34} Our developed New Mexico precedent more than adequately puts employers on notice that when, as in this case, an employer creates an elaborate and detañed progressive discipline procedure and policy and disseminates it to employees in an employee handbook, but faüs to state in an unambiguous, open, obvious, and explicit manner the difference between the at-wül disclaimer and the progressive discipline policy and procedure, the issue of reasonable expectation is going to be a jury issue.
{35} ENMMC went to great length to detail in its employee handbook a discipline policy for management to follow. The handbook explicitly and unambiguously says that “no employee will be terminated without pri- or review from Human Resources.” To permit an employee “every opportunity to comply with departmental expectations” is to give the employee a fair hearing on an issue of alleged employee misconduct. At the same time, ENMMC minimized its disclaimer, and has not distinguished the disclaimer from the discipline policy by explicitly giving employees reason to understand that they can be terminated for any reason at any time and for no particular work-related or business reason notwithstanding the existence of the employer’s elaborate discipline policy. The disclaimer is, as well, ambiguous, in that it states that the handbook is applicable to all employees but does not create a contract or guarantee employment. It is ambiguous, too, when it states that employment termination is subject only to applicable requirements of law. Both the disclaimer and the discipline policy are contained in the employee handbook. Although seemingly inconsistent, both provisions might reasonably and objectively be construed by an employee as being applicable in tandem when considering the termination of an employee’s employment.
{36} Because the result in this case is straightforward under existing New Mexico precedent, I fear the majority’s apparent purpose may be to somehow question Hartbarger or Garrity, broaden Kiedrowski, or whittle away the at-will employment rule. Otherwise, there exists no need for elaboration. No expansion or clarification is required to decide this case. We should restate New Mexico adherence to the at-will rule and at the same time reiterate the Hartbarger admonition: “An employer does not have to issue a policy statement limiting its power to discharge, but if the employer chooses to do so and creates a reasonable expectation on the part of the employee, it is bound to fulfill that expectation.” Hartbarger, 115 N.M. at 672, 857 P.2d at 783. See also Lukoski v. Sandia Indian Mgmt. Co., 106 N.M. 664, 666-67, 748 P.2d 507, 509-10 (1988) (quoting Leikvold v. Valley View Cmty. Hosp., 141 Ariz. 544, 688 P.2d 170, 174 (1984)):
Employers are certainly free to issue no personnel manual at all or to issue a personnel manual that clearly and conspicuously tells their employees that the manual is not part of the employment contract and that their jobs are terminable at the will of the employer with or without reason____ However, if an employer does choose to issue a policy statement, in a manual or otherwise, and, by its language or by the employer’s actions, encourages reliance thereon, the employer cannot be free to only selectively abide by it. Having announced a policy, the employer may not treat it as illusory.
{37} For these reasons, I concur in the reversal of summary judgment dismissing the contract claim, but in the result only. I fully concur in the remainder of the opinion.