Kimble v. Pulaski County Special School Dist.

Annotate this Case

Robert KIMBLE v. PULASKI COUNTY SPECIAL
SCHOOL DISTRICT

CA 95-702 ___ S.W.2d ___

Court of Appeals of Arkansas
Division I
Opinion delivered May 15, 1996

1. Judgment -- summary judgment discussed -- factors on review. -
- Summary judgment should be granted only when a review of
the pleadings, depositions, and other filings reveals that
there is no genuine issue as to any material fact, and the
moving party is entitled to judgment as a matter of law.

2. Statutes -- interpretation of -- clear statutory language
should be followed, not interpreted. -- Where statutory
language is clear and unambiguous, the task of the appellate
court is to follow the statute, not interpret it.

3. Master and servant -- employment-at-will doctrine discussed --
Griffin v. Erickson still applicable. -- Under the employment-
at-will doctrine, an at-will employee may be discharged for
good cause, no cause, or even a morally wrong cause; although
the employment-at-will doctrine has been modified in some
respects, Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308
(1982), which continues to represent Arkansas law, states that
when the term of employment is left to the discretion of
either party, or left indefinite, or terminable by either
party, either party may put an end to the relationship at will
and without cause; employment is held only by mutual consent,
and at common law the right of the employer to terminate the
employment is unconditional and absolute; generally, a
contract of employment for an indefinite term is a "contract
at will" and may be terminated by either party, whereas a
contract for a definite term may not be terminated before the
end of the term, except for cause or by mutual agreement,
unless the right to do so is reserved in the contract; either
party has an absolute right to terminate the relationship; nor
does the fact that the employment is public rather than
private alter the rule; in the absence of some alteration of
the basic employment relationship, an employee for an
indefinite term is subject to dismissal at any time without
cause.

4. Master & servant -- employment-at-will doctrine -- modified
pursuant to reliance on personnel manual or employment
agreement. -- The employment-at-will doctrine has been
modified to provide that, where an employee hired for an
indefinite term relies on a personnel manual or employment
agreement that expressly states that he or she cannot be
discharged except for cause, the employee may not be
arbitrarily discharged in violation of such a provision; the
at-will rule does not apply where the employment agreement
contains an express provision that the employee will not be
discharged except for cause; unless it is for a definite term,
an implied provision against the right to discharge is not
enough.

5. Master & servant -- exception to employment-at-will doctrine -
- discharge that violates public policy excepted. -- If an
employee is discharged for exercising a statutory right, or
for performing a duty required by law, or the reason for the
discharge was in violation of some other well-established
public policy, the employee's wrongful discharge claim will be
recognized as an exception to the employment-at-will doctrine.

6. Master & servant -- employment-at-will doctrine still alive --
cause of action for retaliatory discharge eliminated. --
Where the term of employment in a contract is left to the
discretion of either party, or left indefinite, or terminable
by either party, either party may put an end to the
relationship at will and without cause; by Act 796 of 1993,
the General Assembly eliminated the cause of action for
retaliatory discharge.

7. Master & servant -- Public School Fair Hearing Act did not
modify employment-at-will doctrine -- no error in entry of
summary judgment for appellee. -- The Public School Employee
Fair Hearing Act was determined not to have modified the
employment-at-will doctrine where cases decided after the
statute was enacted indicated that a contract is terminable at
will when the term of employment is left to the discretion of
either party, or left indefinite, or terminable by either
party; accordingly, even though appellee admitted that
appellant's contract was for a definite term, it was
terminable at will by either party for any reason, provided
notice and a hearing were given; appellant admitted that he
was given notice of the reason for his termination and was
provided with a hearing; there was no error in the entry of
summary judgment for appellee.

Appeal from Pulaski Circuit Court, Sixth Division; David
Bogard, Judge; affirmed.
Roachell Law Firm, by: Travis N. Creed, for appellant.
Skokos, Bequette & Smith, P.A., by: Jay Bequette, for
appellee.

John Mauzy Pittman, Judge.*ADVREP*CA1* DIVISION I

CA 95-702

May 15, 1996

ROBERT KIMBLE AN APPEAL FROM PULASKI COUNTY
APPELLANT CIRCUIT COURT, SIXTH DIVISION
NO. 94-1805
VS.
HONORABLE DAVID BOGARD,
PULASKI COUNTY SPECIAL CIRCUIT JUDGE
SCHOOL DISTRICT
APPELLEE AFFIRMED

John Mauzy Pittman, Judge.

Robert Kimble has appealed from a summary judgment entered for
appellee, Pulaski County Special School District, in his wrongful
discharge action. On appeal, appellant argues that his employment
was not terminable at will. We disagree and affirm the circuit
court's decision.
Appellant was employed by appellee as a custodian at Mills
High School in the 1991-92 school year. His written contract of
employment provided: "The employment shall commence on the first
day of August, 1991. Subject to the other terms of this agreement,
the employment will be for a maximum of 233 days...." Under the
"special conditions" listed in the contract, it was provided:
"Both parties agree that this contract may be terminated at any
time by either party by giving oral or written notice to the other
party."
In February 1992, the high school was damaged by fire. After
the principal investigated the fire's origin, he informed appellee
that appellant had been negligent in his duties. Appellant was
then notified by appellee's superintendent that he was being
recommended for immediate termination because he had ignored a fire
alarm. Appellant was given a termination hearing on March 11,
1992, and was then discharged.
In February 1994, appellant filed this wrongful discharge
action against appellee, alleging that he had been terminated in
violation of his contract. He also sought recovery for certain
tort claims.
Appellee moved for summary judgment, relying on Griffin v.
Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), wherein the Arkansas
Supreme Court recognized that, generally, when the term of
employment is left to the discretion of either party, or left
indefinite, or terminable by either party, either party may put an
end to the relationship at will and without cause. In response,
appellant stated: "Ark. Code Ann. 6-17-1701, et seq., known as
the Public School Employee Fair Hearing Act, is applicable to this
case and has bearing on the question of `at will' employment."
Although appellant abandoned his tort claims, he argued that
questions of fact remained as to his breach of contract claim. In
its reply, appellee argued that, although the Public School
Employee Fair Hearing Act provides that school districts must offer
minimum due process to employees recommended for termination, it
has not modified the employment-at-will doctrine.
The circuit judge agreed with appellee, stating:
Plaintiff was employed by the Pulaski County Special
District under a written employment contract, which
provided for employment up to a maximum of 233 days, but
also provided that both Plaintiff and the District
reserve the right to terminate the contract at any time
upon notice to the other party. Accordingly, Plaintiff's
employment with the District was "at will" and either
party, Plaintiff or the District, was entitled to
terminate the Plaintiff's contract at any time and for
any reason or no reason.

Summary judgment should be granted only when a review of the
pleadings, depositions, and other filings reveals that there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Johnson v. Harrywell,
Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). In considering a
motion for summary judgment, the court may also consider answers to
interrogatories, admissions, and affidavits. Muddiman v. Wall, 33
Ark. App. 175, 803 S.W.2d 945 (1991). When the movant makes a
prima facie showing of entitlement, the respondent must meet proof
with proof by showing a genuine issue as to a material fact.
Johnson v. Harrywell, Inc., 47 Ark. App. at 63. In appeals from
the granting of summary judgment, this court reviews facts in the
light most favorable to the appellant and resolves any doubt
against the moving party. Id. Summary judgment is not proper
where evidence, although in no material dispute as to actuality,
reveals aspects from which inconsistent hypotheses might reasonably
be drawn and reasonable minds might differ. Id. On appellate
review, this court need only decide if the granting of summary
judgment was appropriate based on whether the evidentiary items
presented by the moving party in support of a motion left a
material question of fact unanswered. Id.
Appellant focuses his appeal on two arguments: (1) that his
employment was not terminable at will because it was for a definite
period of time; and (2) that the Public School Employee Fair
Hearing Act has altered the employment-at-will doctrine.
Appellee concedes that the employment contract was for a
definite term, even though it provided that appellant would be
employed for a "maximum of 233 days." We therefore need not
determine the effect of the words "maximum of" in establishing
whether the contract was for a definite term.
Arkansas Code Annotated 6-17-1703 (Repl. 1993) provides:
(a) The superintendent of a school district may
recommend termination of an employee during the term of
any contract, or the nonrenewal of a full-time nonproba-
tionary employee's contract, provided that he gives
notice in writing, personally delivered, or by letter
posted by registered or certified mail to the employee's
residence address as reflected in the employee's person-
nel file.

(b) The recommendation of nonrenewal of a full-time
nonprobationary employee's contract shall be made no
later than thirty (30) calendar days prior to the
beginning of the employee's next contract period.

(d) The notice shall further state that an employee
being recommended for termination, or a full-time
nonprobationary employee being recommended for non-
renewal, is entitled to a hearing before the school board
upon request, provided such request is made in writing to
the superintendent within thirty (30) calendar days from
receipt of said notice.

Where statutory language is clear and unambiguous, the task of
the appellate court is to follow the statute, not interpret it.
Public Employee Claims Div. v. Chitwood, 324 Ark. 30, ___ S.W.2d
___ (1996). Generally, the law of this state is that an employer
or an employee may terminate an employment relationship at will.
Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991).
Under the employment-at-will doctrine, an at-will employee may be
discharged for good cause, no cause, or even a morally wrong cause.
Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683
(1991). Although the employment-at-will doctrine has been modified
in some respects, as discussed below, Griffin v. Erickson, as it
applies to this case, continues to represent the law of this state.
There, the supreme court discussed the history of the employment-
at-will doctrine in this state and stated:
It is generally, perhaps uniformly, held that when the
term of employment is left to the discretion of either
party, or left indefinite, or terminable by either party,
either party may put an end to the relationship at will
and without cause. See cases cited in 56 Corpus Juris
Secundum, Master-Servant, 31, p. 412 and 53 American
Jurisprudence 2nd, Master-Servant, 17, p. 94. It has
been stated generally that employment is held only by
mutual consent, and that at common law the right of the
employer to terminate the employment is unconditional and
absolute. Jefferson Electric Company v. N.L.R.B., 102 F.2d 949 (1939).

Generally, a contract of employment for an indefi-
nite term is a "contract at will" and may be terminated
by either party, whereas a contract for a definite term
may not be terminated before the end of the term, except
for cause or by mutual agreement, unless the right to do
so is reserved in the contract. Little v. Federal
Container Corporation, 452 S.W.2d 875 (Ct. of App.
Tennessee, 1969).

Our own cases have adhered to this principle, that
either party has an absolute right to terminate the
relationship. Miller v. Missouri Pacific Transportation
Company, 225 Ark. 475, 283 S.W.2d 158 (1955), Moline
Lumber Company v. Harrison, 128 Ark. 260, 194 S.W. 25
(1917), St. Louis, I.M. and S.R. Company v. Matthews, 64
Ark. 398, 42 S.W. 902 (1897). Federal decisions applying
Arkansas substantive law in this field are: Tinnon v.
Missouri Pacific Railroad Company, 282 F.2d 773 (8th Cir.
1960); Cato v. Collins, 539 F.2d 656 (8th Cir. 1976), and
Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977). Nor does
the fact that the employment is public rather than
private alter the rule. Ruggieri v. City of Somerville,
405 N.E.2d 982 (Mass. 1980). Board of Regents v. Roth,
408 U.S. 564 (1972), and Mittlestaedt v. Board of
Trustees of the University of Arkansas, 487 F. Supp. 960
(1980).

It is quite clear, therefore, that in the absence of
some alteration of the basic employment relationship, an
employee for an indefinite term is subject to dismissal
at any time without cause.

277 Ark. at 436-37, 642 S.W.2d at 310.
In Newton v. Brown & Root, 280 Ark. 337, 658 S.W.2d 370
(1983), the court stated: "It is generally held that, when the
term of employment is indefinite, or at will (terminable by either
party), either the employer or the employee may put an end to the
relationship at will and without cause."
In Gladden v. Arkansas Children's Hospital, 292 Ark. 130, 728 S.W.2d 501 (1987), the supreme court modified the employment-at-
will doctrine to provide that, where an employee hired for an
indefinite term relies on a personnel manual or employment
agreement that expressly states that he or she cannot be discharged
except for cause, the employee may not be arbitrarily discharged in
violation of such a provision. The court stated:
We do, however, believe that a modification of the
at will rule is appropriate in two respects: where an
employee relies upon a personnel manual that contains an
express provision against termination except for cause he
may not be arbitrarily discharged in violation of such a
provision. Moreover, we reject as outmoded and untenable
the premise announced in St. Louis Iron Mt. Ry. Co. v.
Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at
will rule applies even where the employment agreement
contains a provision that the employee will not be
discharged except for cause, unless it is for a definite
term. With those two modifications we reaffirm the at
will doctrine.

... We have come to the conclusion that an implied
provision against the right to discharge is not enough.
The firm rule at common law is that either party can
terminate at will and while the rule has been criticized,
24 Arkansas Law Review 729, 93 Harvard Law Review 1816,
we are unwilling to replace it with a rule that subjects
the employer to suit for wrongful discharge whenever an
employee is terminated.

292 Ark. at 136, 728 S.W.2d at 505. See also Mertyris v. P.A.M.
Transport, Inc., 310 Ark. 132, 832 S.W.2d 823 (1992); Crain Indus.,
Inc. v. Cass, supra.
In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380
(1988), the supreme court held that, if an employee is discharged
for exercising a statutory right, or for performing a duty required
by law, or the reason for the discharge was in violation of some
other well-established public policy, it would recognize the
employee's wrongful discharge claim as an exception to the
employment-at-will doctrine. Accord Webb v. HCA Health Servs. of
Midwest, Inc., 300 Ark. 613, 780 S.W.2d 571 (1989); Koenighain v.
Schilling Motors, Inc., 35 Ark. App. 94, 811 S.W.2d 342 (1991).
In Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), the court held that an employer violates the
public policy of this state in discharging an employee for making
a claim for workers' compensation benefits. In that case and in
Leggett v. Centro, Inc., 318 Ark. 732, 887 S.W.2d 523 (1994), which
followed it, the supreme court again stated that, when the term of
employment in a contract is left to the discretion of either party,
or left indefinite, or terminable by either party, either party may
put an end to the relationship at will and without cause. In
Tackett v. Crain Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995),
the supreme court recognized that, by Act 796 of 1993, the General
Assembly had eliminated the cause of action for retaliatory
discharge described in Wal-Mart Stores, Inc. v. Baysinger, supra.
Griffin v. Erickson was also cited in City of Green Forest v.
Morse, 316 Ark. 540, 873 S.W.2d 154 (1994); Smith v. American
Greetings Corp., supra; Proctor v. East Central Arkansas EOC, 291
Ark. 265, 724 S.W.2d 163 (1987); Bryant v. Southern Screw Machine
Products Co., 288 Ark. 602, 707 S.W.2d 321 (1986); and Riceland
Foods, Inc. v. Director of Labor, 38 Ark. App. 269, 832 S.W.2d 295
(1992).
We do not believe that the Public School Employee Fair Hearing
Act has modified the employment-at-will doctrine. Both City of
Green Forest v. Morse, supra, and Leggett v. Centro, Inc., supra,
were decided after the statute was enacted; both of these cases
indicated that a contract is terminable at will when the term of
employment is left to the discretion of either party, or left
indefinite, or terminable by either party.
Accordingly, we hold that, even though appellee admits that
appellant's contract was for a definite term, it was terminable at
will by either party for any reason, provided notice and a hearing
were given. In his complaint, appellant admitted that he was given
notice of the reason for his termination and was provided with a
hearing.
We find no error in the entry of summary judgment for
appellee.
Affirmed.
Stroud and Neal, JJ., agree.

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