Taylor v. National Life Insurance Co.

TAYLOR_V_NATIONAL_LIFE_INSURANCE_CO.92-339; 161 Vt. 457; 652 A.2d 466

[Opinion Filed 17-Dec-1993]

[Motion for Reargument Denied 17-Mar-1994

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-389


 Charles S. Taylor                            Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 National Life Insurance Co.,                 May Term, 1993
 John H. Harding & Mark J.
 Levesque


 Stephen B. Martin, J.

 Leslie C. Pratt and Robert Mello, South Burlington, for plaintiff-appellant

 Robert S. Burke, Montpelier, for defendants-appellees


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiff Charles Taylor brought a wrongful discharge suit
 against defendants National Life Insurance Company and two of its officers
 individually.  Plaintiff's complaint included seven different bases for
 recovery:  claims resting on theories of discrimination on the basis of age
 or handicap condition under both disparate treatment and disparate impact
 doctrines, on theories of contract and promissory estoppel, and on the basis
 of negligence and intentional infliction of emotional distress.  The court
 allowed the claims based on age and disability discrimination to go to the
 jury, which found for defendant National Life and the individual
 defendants.  The court granted a directed verdict on the latter four claims.
 Plaintiff now appeals solely the grant of a directed verdict to National

 

 Life on the breach of contract and promissory estoppel claims.(FN1) We affirm
 in part and reverse in part.
      Plaintiff began his career with National Life in January 1966.  By
 1986, he had risen to officer status in the corporation and was running
 National Life's User Information Center servicing National Life's computer
 operations.  He developed heart disease and had a triple bypass operation
 in October of 1985, but returned to work within a month.  In February 1986,
 the plaintiff's department was reorganized and renamed the Automation
 Support Department.  National Life split responsibility for its computer
 operations between plaintiff and Greg Doremus; plaintiff continued to
 oversee internal computer operations while Doremus took on management of
 National Life's field staff computer operations.  A year later, the
 Automation Support Department was again reorganized.  Plaintiff was placed
 in an enhanced job that carried with it greater responsibility.  Award of
 the new job title and associated increased salary, however, was made
 contingent upon plaintiff's satisfactory performance of the job in the
 ensuing six months.  Plaintiff's supervisor told him that he would be
 evaluated after six months and either be given the additional salary or be
 given another position at a lower job grade.
      Prior to 1986, National Life enjoyed sound financial health, but in
 1986, its financial picture began to change.  It suffered losses of $38
 million in fiscal year 1986, and by the third quarter of fiscal year 1987

 

 had losses of an additional $47 million.  As a result, in early 1987,
 National Life implemented a program aimed at reducing operating expenses by
 about ten percent, or close to $8 million in total savings.  Plaintiff was
 aware of and participated in the expense reduction efforts, including
 discussions about reducing his own staff.
      In September 1987, National Life offered an early retirement plan to
 163 employees; ninety-two persons accepted the offer.  Plaintiff, age forty-
 nine at the time, was eligible for the plan, but chose not to take early
 retirement because his pension would have been small.  National Life then
 began to reduce staff through layoffs,  eliminating forty-nine jobs,
 including the one occupied by plaintiff.  Plaintiff's work overseeing
 internal computer operations was merged with Doremus' work overseeing field
 computer operations in a new position.  Plaintiff's supervisor chose
 Doremus, who was in his early thirties at the time, for the new position.
 Two assistant director jobs reporting to Doremus became available in
 computer operations at this time, but they were filled by other people.
      Because plaintiff's position was eliminated, he was laid off.  He was
 neither offered the chance to apply for nor did he seek either of the
 assistant director jobs that were filled by others.  He did not find another
 job within National Life or with any other company.  He was given a
 severance package and was also able to elect the early retirement plan to
 receive a pension.
                                     I.
      On appeal plaintiff contends that the trial court improperly granted
 National Life's motion for a directed verdict on his breach of contract and
 promissory estoppel claims.  "When reviewing a trial court's grant of a

 

 directed verdict, we must view the evidence in the light most favorable to
 the nonmoving party, excluding any modifying evidence; a directed verdict is
 not proper if any evidence fairly and reasonably supports the nonmoving
 party's claim."  Meller v. Bartlett, 154 Vt. 622, 623-24, 580 A.2d 484, 485
 (1990).  Further, "we will uphold the trial court when the nonmoving party
 has failed to present evidence on an essential element of [the] case."  Id.
 at 624, 580 A.2d  at 485.
      Plaintiff contends that the jury could find that his employment
 agreement with National Life was not at-will, and had, in fact, been
 transformed from an at-will agreement to a contract for employment that
 precluded National Life from terminating him during its 1987 staff
 downsizing.  For purpose of analysis, it is helpful to break down
 plaintiff's overall claim into four main issues:  (1) whether the written
 offer of employment to plaintiff, oral representations made to plaintiff,
 and National Life's personnel manual were sufficient to present a jury issue
 on whether there was an implied contract that plaintiff could be terminated
 only for good cause; (2) whether the economic conditions faced by National
 Life created good cause; (3) whether the jury could find plaintiff was
 terminated for a different reason; and (4) whether the events surrounding
 plaintiff's 1987 conditional promotion and layoff could be found to have
 created a special contract that was breached.  We address each of these
 issues in turn.  We start with the basic implied-contract issue.

                                     II.
      Plaintiff bases his overall contract theory on three main items.  The
 first is his 1966 employment letter, which stated, in part:  "Continuous

 

 employment with [National Life] is subject to one's performing in an
 entirely satisfactory manner . . . ."  Plaintiff argues that such language
 indicates that he could be terminated only if his performance was
 unsatisfactory.  National Life responds with additional language from the
 letter:  "It is understood that employment may be terminated by the employee
 or by the Company upon reasonable notice if the employment arrangement has
 not worked out satisfactorily."  It argues that the additional language
 shows an at-will employment contract, allowing the employer to terminate for
 any reason or no reason.
      Second, plaintiff relies on statements made at the time of his hiring
 that National Life was a stable employer and "if you did your job . . . you
 could expect . . . to stay there and . . . retire from there."  Consistent
 with these statements, National Life's Vice President of Human Relations
 testified that if there was no misconduct, "job security could be expected,
 I would say that was a cultural expectation."
      Third, plaintiff relies on statements in the personnel policy manual.
 The most important of these are:
      (1)  "It is paramount that each individual be treated fairly,
           uniformly, and impartially . . . ."

      (2)  "It is Company policy to make every effort to avoid
           involuntary terminations.  Discharge is of course the
           severest form of disciplinary action and requires
           careful consideration before being resorted to."

      (3)  "Only after every possibility has been explored should
           you 'give up' on an employee and consider termination .
           . . ."  [The manual lists three steps to be taken before
           termination].

      (4)  "The following are circumstances which may warrant
           termination."  [The manual lists and describes
           "Misconduct," "Attendance" and "Inadequate
           Performance."]

 


      (5)  "Unless a serious wrong has been committed, the
           supervisor should take progressive disciplinary actions,
           with the severity increasing with each offense."

      (6)  When discipline is imposed the supervisor must "[g]ive
           the employee the right to appeal."

 The personnel policy manual made no reference to termination because of
 downsizing or reductions in force.
      It is helpful to recapitulate our decisions on employment contracts and
 grounds for termination.  A basic precept of employment contract
 construction is that "an employment contract for an indefinite term is an
 'at-will' agreement, terminable at any time, for any reason."  Foote v.
 Simmonds Precision Prods. Co., 158 Vt. 566, 570, 613 A.2d 1277, 1279 (1992).
 This is, however, "simply a rule of contract construction" that can "be
 overcome by evidence to the contrary."  Id.
      We began to define what could be "evidence to the contrary" in Sherman
 v. Rutland Hosp., Inc., 146 Vt. 204, 500 A.2d 230 (1985).  In that case,
 plaintiff received defendant's personnel policy manual as part of the hiring
 negotiation.  The manual set forth a progressive discipline process, ending
 with termination.  Upon commencing work, plaintiff signed a statement that
 he had read and understood the manual.  Plaintiff was eventually fired
 because the employees he supervised complained about his management style.
 In his wrongful termination suit, the jury found that plaintiff's employment
 contract included the disciplinary grounds and procedures in the manual and
 that the manual requirements were breached.
      This Court affirmed, holding that the employee and employer could
 bargain for, and agree to be bound by, termination provisions set forth in
 the personnel manual, even if the bargain applies only to the employee
 before the court and not the entire employee population.  Id. at 207-08,

 

 500 A.2d  at 232.  We noted that the case involved an alleged bilateral
 agreement to make the manual terms part of the employment agreement and left
 for another day "whether the employee manual itself created enforceable
 contract rights generally."  Id. at 208, 500 A.2d  at 232.
      The question left open in Sherman arose in Benoir v. Ethan Allen, Inc.,
 147 Vt. 268, 514 A.2d 716 (1986).  The Ethan Allen personnel policy manual
 was distributed during employee orientation, after the initial hiring, and
 the employee was required to sign the manual, which was then placed in the
 employee's personnel file.  Id. at 271 n.2, 514 A.2d  at 718 n.2.  The jury
 found that "this handbook constituted a part of a binding and enforceable
 contract between the parties," but the employer did not appeal this point.
 Id. at 270-71 & n.2, 514 A.2d  at 718 & n.2.
      Benoir is also instructive because the court, not the jury, found that
 the manual required termination only for cause.  See id. at 271, 514 A.2d 
 at 718.  We upheld this determination because the relevant manual provision
 "cannot be construed as being consistent with an at-will employment
 relationship."
      Four months before Benoir we decided Larose v. Agway, Inc., 147 Vt. 1,
 508 A.2d 1364 (1986), a decision that on the surface appears inconsistent
 with Benoir.  In Larose, the plaintiff stipulated that "the policies and
 procedures in the pertinent policy manual are adopted, enforced, implemented
 and amended by Agway unilaterally," and that "the provisions in the manual
 are not negotiated for by employees, either at the time of hiring or at such
 time as Agway chooses to amend the manual."  Id. at 3, 508 A.2d  at 1366.
 Because of that stipulation, we concluded it was proper for the trial court
 to grant summary judgment for the employer as "plaintiff can not prevail on

 

 the basis of a specific employment agreement."  Id.  We also held that the
 plaintiff could not recover based on promissory estoppel because he did not
 allege he was aware of, or relied upon, the provisions of the manual in
 deciding to remain in the defendant's employment.  Id. at 4, 508 A.2d  at
 1366.
      More recently, in Foote, 158 Vt. at 571, 613 A.2d  at 1279-80, we noted
 that some courts have held that an employer may unilaterally modify an at-
 will employment contract by use of a manual on which it intended employees
 to rely, but we did not resolve whether unilateral modification was
 enforceable in Vermont.  Instead, we upheld a wrongful discharge verdict
 based on promissory estoppel even though the jury also found an at-will
 employment relationship.  Id. at 571-72, 613 A.2d  at 1280.  In Foote, unlike
 Larose, there was specific evidence that the plaintiff read the manual,
 relied upon it by filing grievances, and was fired for exercising his rights
 under the manual.  See id. at 568, 613 A.2d  at 1278.  This evidence was
 sufficient for the jury to find liability based on promissory estoppel.  Id.
 at 573, 613 A.2d  at 1281.
      To decide this case, we must clarify the tension between Larose and
 Benoir with respect to personnel manual provisions.  We join the many courts
 that have held that personnel manual provisions inconsistent with an at-
 will relationship may be used as evidence that the contract of employment
 requires good cause for termination despite the fact that the manual was not
 part of the initial employment agreement.  See, e.g. Leikvold v. Valley View
 Community Hosp., 688 P.2d 170, 174 (Ariz. 1984); Foley v. Interactive Data
 Corp., 765 P.2d 373, 387, 254 Cal. Rptr. 211, 225 (1988); Duldulao v. Saint
 Mary of Nazareth Hosp. Center, 505 N.E.2d 314, 318 (Ill. 1987); Toussaint v.

 

 Blue Cross & Blue Shield of Mich., 292 N.W.2d 880, 892 (Mich. 1980); Pine
 River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983); Woolley v.
 Hoffman-La Roche, Inc., 491 A.2d 1257, 1264 (N.J. 1985).   We recognize that
 this holding draws on aspects of both unilateral contract formation and
 promissory estoppel.  We agree with the rationale for the rule stated in the
 leading case of Toussaint v. Blue Cross & Blue Shield of Michigan:
            While an employer need not establish personnel
         policies or practices, where an employer chooses to
         establish such policies and practices and makes them
         known to its employees, the employment relationship is
         presumably enhanced.  The employer secures an orderly,
         cooperative and loyal work force, and the employee the
         peace of mind associated with job security and the
         conviction that he will be treated fairly.  No pre-
         employment negotiations need take place and the parties'
         minds need not meet on the subject; nor does it matter
         that the employee knows nothing of the particulars of
         the employer's policies and practices or that the
         employer may change them unilaterally.  It is enough
         that the employer chooses, presumably in its own
         interest, to create an environment in which the employee
         believes that, whatever the personnel policies and
         practices, they are established and official at any
         given time, purport to be fair, and are applied
         consistently and uniformly to each employee.  The
         employer has then created a situation "instinct with an
         obligation."

 292 N.W.2d  at 892.  See generally Befort, Employee Handbooks and the Legal
 Effect of Disclaimers, 13 Ind. Rel. L.J. 326, 345-47 (1992).  To the extent
 Larose is inconsistent with this holding, it is overruled.
      We conclude that the content of the personnel policy manual was
 sufficient for a jury to find that the employment contract restricted defend-
 ant to terminating employees only for cause.(FN2) The language is similar 

 

 to that we found sufficient in Sherman.  It contains the same commitment to
 a progressive discipline system.
      Defendant raises two additional arguments against this conclusion.
 First, defendant argues that the manual was intended only to provide
 guidance to management personnel, and not to provide rights to employees,
 and it was distributed solely to supervisors.  Although we agree that a
 limited-purpose manual might, in some instances, not be sufficient to
 establish contractual rights, see Triplett v. Electronic Data Sys., 710 F. Supp. 667, 673-74 (W.D. Mich. 1989); Skramstad v. Otter Tail County, 417 N.W.2d 124, 126-27 (Minn. Ct. App. 1987), we cannot agree that this theory
 can be applied here.
      Certain of the manual information is presented in the "Employee
 Policies and Benefits" handbook, which is distributed to all employees.  The
 handbook is not in evidence so we cannot determine what it covers.  It is
 clear, however, that the manual is the official National Life policy while
 the handbook is considered an explanation of that policy.  Thus, the manual
 provides:
           The personnel policies, practices, and procedures of
           National Life extend to every individual, in every
           aspect of his/her employment with the company. . . .
           It is the purpose of this Manual to help bring this
           about by presenting in one place, organized and indexed
           for ready reference, a clear and definite explanation of
           all existing Company personnel policies and procedures.

                                    . . .

           [S]hould there be any conflict of information [with the
           employee handbook], the Manual is binding.

 The manual is the official expression of National Life policy, binding on
 all employees, and can be considered in determining whether defendant was
 contractually bound to terminate only for good cause.

 

      Second, defendant argues that the hiring letter makes it clear that it
 can terminate without cause.  As noted above, both sides have cited
 different language from the hiring letter to support their cause.  We
 conclude the letter is ambiguous, and the jury could weigh it in evaluating
 each side's position.(FN3) See Diggs v. Pepsi-Cola Metro. Bottling Co., 861 F.2d 914, 919 (6th Cir. 1988) (jury could find just cause contract existed
 when plaintiff was told he would not be dismissed if he was "doing the
 job").

                                    III.
      Because the jury could find that a contract existed restricting
 defendant to terminating plaintiff's employment solely for good cause, we
 must face the next issue:  whether the economic circumstances that required
 National Life to lay off employees to reduce expenses constituted good cause
 to terminate plaintiff.  Without exception, courts that have considered the
 question have held that economic circumstances that necessitate employer
 layoffs constitute good cause for termination.  See, e.g., Gianaculas v.
 Trans World Airlines, Inc., 761 F.2d 1391, 1395 (9th Cir. 1985); Zoerb v.
 Chugach Elec. Ass'n, 798 P.2d 1258, 1262 (Alaska 1990); Clutterham v.
 Coachman Indus., Inc., 215 Cal. Rptr. 795, 797 (Cal. Ct. App. 1985); McCart
 v. J. Walter Thompson USA, Inc., 469 N.W.2d 284, 287 (Mich. 1991); Linn v.
 Beneficial Commercial Corp., 543 A.2d 954, 957 (N.J. Super. Ct. 1988).  The

 

 rule is supported by important policy considerations.  As the Michigan Court
 of Appeals emphasized:
           To hold otherwise would impose an unworkable economic
           burden upon employers to stay in business to the point
           of bankruptcy in order to satisfy employment contracts
           and related agreements terminable only for good or
           sufficient cause.

 Friske v. Jasinski Builders, Inc., 402 N.W.2d 42, 44 (Mich. Ct. App. 1986).
 Similarly, the New Jersey Superior Court has noted that "history is replete
 with examples of technological and business innovations which have created
 new markets and destroyed old ones, thereby necessitating changes and shifts
 in the work force."  Linn, 543 A.2d  at 957.  Attempting to second-guess
 these shifts would be self-defeating as well as an inappropriate
 interference in managerial discretion.  See Clutterham, 215 Cal. Rptr.  at
 797.  We adopt this rule.
      Although plaintiff argues that economic circumstances cannot be good
 cause, he does not dispute that defendant faced significant losses and was
 required to cut expenses substantially to remain profitable.  There is no
 dispute that economic circumstances required layoffs at the time plaintiff
 was terminated, and good cause existed.
      Plaintiff makes two arguments against the application of the economic
 necessity rule in these circumstances.  First, he argues that National Life
 owes him a special responsibility because it is an insurance company that
 provides income security to members of the public.  National Life's public
 responsibilities warrant special regulation to protect its policyholders and
 other members of the public.  As long as it must function in a competitive
 marketplace, we do not see a special justification for job protection for
 its employees.  Indeed, providing job protection to employees in difficult

 

 economic times can only impair the interests of policyholders and the public
 at large.  Plaintiff's argument leads to rejection of his claim.
      Second, plaintiff argues that the issue is one of contract
 construction, and the contract, as evidenced by the personnel manual, does
 not authorize termination for this purpose.  We accept that an employer
 could bind itself to continue employment of an employee despite the fact
 the employer is not making a profit.  See Stull v. Combustion Eng'g, Inc.,
 595 N.E.2d 504, 507 (Ohio Ct. App. 1991).  In view of the grave
 consequences of such a policy and the impossibility of compliance in serious
 economic difficulties, see Restatement (Second) of Contracts { 261 (1981)
 (contract may be discharged by supervening impracticability), we will
 require such a promise to be clear and specific.  See Boynton v. TRW, Inc.,
 858 F.2d 1178, 1184 (6th Cir. 1988).  See generally Restatement (Second) of
 Contracts { 203 (interpretation of contract that gives "reasonable, lawful,
 and effective meaning to all terms is preferred").
      There is no clear and specific promise to continue employment despite
 economic losses in this case.  Instead, plaintiff argues from the absence of
 a specific authorization for economically motivated reductions in force.
 Although the list of grounds for termination in the manual all address
 employee discipline, there is no clear and specific statement that these
 are the only possible grounds for termination and that a termination as part
 of a reduction in force is impermissible.  Plaintiff's argument based on the
 manual is unavailing.
      Additionally, we are not willing to read into the oral statements that
 accompanied plaintiff's hiring a commitment to life employment despite
 subsequent economic circumstances.  The statements express the hope for a

 

 long-term relationship, but fall short of a promise of a lifelong job
 irrespective of the economic circumstances of the employer.  See Fregara v.
 Jet Aviation Business Jets, 764 F. Supp. 940, 947 (D.N.J. 1991); Wilder v.
 Butler Mfg. Co., 533 N.E.2d 1129, 1131 (Ill. Ct. App. 1989); Rowe v.
 Montgomery Ward & Co., 473 N.W.2d 268, 273 (Mich. 1991); Scott v.
 Extracorporeal, Inc., 545 A.2d 334, 337 (Pa. Super. Ct. 1988).

                                     IV.
      Plaintiff claims that even if economic circumstances constitute good
 cause and that National Life faced such circumstances when it laid him off,
 he was entitled to have the jury determine whether the economic circum-
 stances were the true reason for his termination.  He alleges that the
 adverse economic circumstances were merely a pretext for his termination.
      Plaintiff's argument fails because the only other factors he claims
 motivated his termination were his age and his disability, and these claims
 were fully litigated with the jury finding against him on these theories.
 He is precluded from relying on this alternative theory of National Life's
 motivation in support of the breach-of-contract claim.  See Trepanier v.
 Getting Organized, Inc., 155 Vt. 259, 266 n.3, 583 A.2d 583, 588 n.3 (1990)
 (rejecting plaintiff's argument that defendants' alleged age discrimination
 interfered with parties' contractual relationship as federal jury had
 previously found no age discrimination).
      To reach the jury on a pretext claim, plaintiff must present some
 evidence that his termination was not for the reason specified by National
 Life.  See Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140,
 144 (Alaska 1991); McCart, 469 N.W.2d  at 287.  Apart from the evidence going

 

 to the discrimination claims that were resolved against him by the jury, he
 has presented no evidence to rebut the reasons given by National Life.  The
 directed verdict was proper on the pretext claim.

                                     V.
      Plaintiff's final claim, that the events surrounding his 1987
 conditional promotion and layoff created a special contract, requires a more
 detailed explanation of the events in the year prior to plaintiff's
 termination.  Again, we must view the facts in the light most favorable to
 plaintiff.
      In February 1987, plaintiff was promoted provisionally to the upgraded
 job of director of the User Information Center.  He was informed, however,
 that he would not receive the salary that went with the promotion, or the
 permanent position, unless he proved himself for six months.  His
 supervisor detailed areas of concern in which plaintiff had to show
 improvement.  He was told that he would be evaluated after six months and
 either receive the position permanently or be offered "some other job of a
 lower grade."
      Shortly thereafter, plaintiff's supervisor died, and a new supervisor
 was appointed.  The six-month period went by and plaintiff was not evaluated
 and did not receive the raise for the new position.  By the end of the
 summer, the major concern in National Life was reducing expenses.  The
 company determined that it had to eliminate positions, and it developed
 "corporate downsizing" guidelines.  Managers were to look first at positions
 "in terms of functions and the business necessity of those functions."  If a
 position were eliminated, the occupant would be laid off.  If there was

 

 more than one incumbent, the manager was to look at performance appraisals
 over the prior three years and keep those with the highest ratings "if clear
 distinctions in performance can be shown."  Those with the most seniority
 with National Life were to be retained when there were not sufficient
 performance differences.  Plaintiff received a copy of these guidelines.
      By mid-September, plaintiff's then supervisor decided to eliminate
 plaintiff's job, along with that held by Greg Doremus, and to create one new
 job combining both functions.  He discussed how to choose between Doremus
 and plaintiff in filling the new position with the Vice President of Human
 Relations and generally followed the downsizing requirements.  He conducted
 an annual evaluation on November 1, 1987 and rated plaintiff's performance
 "satisfactory" while rating Doremus's performance "superior."  Based largely
 on this evaluation, he eliminated plaintiff's job on November 16, 1987 and
 gave the new job to Doremus.  Plaintiff was not offered another job.
      Plaintiff has two claims arising out of these events:  (1) his
 evaluation was manipulated to reach a predetermined result so that the new
 job could be offered to Doremus, and not to him; (2) there was a specific
 promise of fair dealing connected to the February 1987 promotion, and the
 breach of this promise resulted in his termination.
      We agree that, even though economic necessity represents good cause to
 terminate plaintiff, "he is not precluded from challenging the procedure
 followed . . . in discharging him."  Pachla v. Saunders Sys., Inc., 899 F.2d 496, 500 (6th Cir. 1990); see also Patton v. University of Chicago
 Hosps., 706 F. Supp. 627, 630 (N.D. Ill. 1989) (employer's reduction-in-
 force policy may create "enforceable contractual rights").  Other courts
 have found contracts in reduction-in-force policies and procedures even

 

 when there is no overall contract to terminate only for good cause.  See,
 e.g., Crain Indus., Inc. v. Cass, 810 S.W.2d 910, 913-15 (Ark. 1991).
 Thus, the claim based on the reduction-in-force policy is separate from that
 based on the employment contract.
      Viewed in the light most favorable to plaintiff, the evidence suggests
 that National Life followed the downsizing guidelines, although technically
 they did not apply to the selection of an employee for a new position
 created during downsizing.  Any manipulation of the evaluation process to
 avoid giving the new position to plaintiff and resulting in his termination
 could be actionable if the jury found that a contractual obligation was
 created by the guidelines and their use in the unique circumstances of
 plaintiff's case.  Plaintiff also presented sufficient evidence to raise a
 question about the fairness of the evaluation and its use in his
 termination.  He had received "Superior" ratings in the past.  His
 supervisor had no criticism of his work performance and failed to do the
 promised six-month evaluation.  The supervisor was aware that the outcome of
 the evaluation could determine who would be terminated.  We conclude that
 this theory should have been presented to the jury.
      We do not believe that plaintiff's alternative claim should have been
 submitted to the jury.  Plaintiff has argued this both as a contract claim
 and one based on promissory estoppel.  The events involved add little to
 plaintiff's existing contract theory.  At best, they show an independent
 contract not to terminate plaintiff from the position established in
 February 1987 without good cause and to offer plaintiff a lower position if
 his performance was unsatisfactory.  This contract, like that established
 from the personnel policy manual, does not clearly and specifically restrict

 

 terminations caused by economic necessity.  Thus, the economic necessity
 National Life faced established good cause to terminate plaintiff under this
 later contract.
      Plaintiff's argument is stronger when based on a promissory estoppel
 theory.  In Foote, we held that "promissory estoppel may . . . provide a
 remedy for wrongful discharge . . . and may be used affirmatively if the
 elements are present." 158 Vt. at 571, 613 A.2d  at 1280 (citations omitted);
 see also Continental Airlines v. Keenan, 731 P.2d 708, 712 (Colo. 1987)
 (employee may enforce term of employment agreement even if requisites for
 formation of contract not found).  We have required the elements of
 promissory estoppel set out in the Restatement (Second) of Contracts {
 90(1) (1981):
           "A promise which the promisor should reasonably expect
           to induce action or forbearance on the part of the
           promisee or a third person and which does induce such
           action or forbearance is binding if injustice can be
           avoided only by enforcement of the promise."

 quoted in  Foote, 158 Vt. at 573, 613 A.2d  at 1281.
      For purpose of analysis, we can assume that plaintiff relied upon the
 promise of his supervisor by taking the new job, without proper compensa-
 tion, in February 1987.  We can also assume that if plaintiff had rejected
 the promotion, he would have remained in a lower job and avoided the layoff
 that later occurred.  The detriment was not, however, caused by a breach of
 the promise.  The evaluation, albeit belated, showed that plaintiff
 performed satisfactorily in the job and was entitled to it on a permanent
 basis.  Thus, plaintiff was not entitled to be offered a lower job.  The
 elimination of the job for economic reasons was an independent event

 

 unconnected to the promise.  There is no injustice that can be corrected by
 enforcement of a promise.
      Affirmed in part; reversed in part and remanded for proceedings not
 inconsistent with this opinion.

                                    FOR THE COURT:


                                    _____________________________
                                    Associate Justice



-------------------------------------------------------------------------------
                              Footnotes


FN1.    Plaintiff appealed from the directed verdict without specifying that
 the appeal applied solely to National Life.  He has not in his brief
 mentioned his claims against the individual defendants or argued why these
 claims should have been allowed to go to the jury.  Therefore, we have
 considered plaintiff's claims only with respect to National Life.

FN2.    Because of this holding, we have not reached plaintiff's promissory
 estoppel theory with respect to the manual, hiring letter and oral
 statements.  If accepted, this theory would have added nothing to our
 conclusion on the contract theory.

FN3.    National Life also points out that the hiring letter in effect at
 the time of plaintiff's termination, as contained in the manual, is
 different and clearly specifies the at-will nature of the employment.  The
 new letter was not sent to plaintiff.  There is no reason to hold it binds
 him.  By comparison, it does emphasize the ambiguity in the phrasing of the
 earlier letter.