Clement v. Woodstock Resort Corp.

Clement v. Woodstock Resort Corp.  (95-375); 165 Vt 627; 687 A.2d 886

[Opinion Filed 10-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-375

                            SEPTEMBER TERM, 1996


David A. Clement                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Windsor Superior Court
                                     }
Woodstock Resort Corp.               }
                                     }     DOCKET NO. S521-91WrC


       In the above-entitled cause, the Clerk will enter:

       Defendant Woodstock Resort Corporation appeals a jury verdict awarding
  plaintiff David A. Clement damages for wrongful discharge.  Defendant
  contends that (1) the court's instructions erroneously substituted its
  judgment for that of the jury's on whether defendant's employee handbook
  and policy manual created an employment contract obligating defendant to
  follow progressive disciplinary steps and to fire plaintiff only for cause;
  (2) there was insufficient evidence to support the jury's verdict; and (3)
  there was insufficient evidence to support the damage award.  We affirm.

       Plaintiff worked for defendant as a groundskeeper and mechanic for
  several summers before being hired as a custodian on a full-time basis. 
  After one year on the job, plaintiff was suspended and discharged for
  "insubordination" stemming from a critical and profane note he allegedly
  sent his supervisor.  Plaintiff testified that he wrote the note to himself
  to ventilate his frustrations and did not intend that it be read by anyone
  else.  Defendant claimed at trial that other misconduct also played a role
  in plaintiff's firing, including allegations that he improperly examined
  confidential papers on his supervisor's desk and sexually harassed a
  co-worker. Although the co-worker corroborated the allegation at trial, no
  complaint, investigation, or warning ever issued in connection with these
  additional allegations of misconduct.

       Plaintiff argued at trial that his discharge violated an implied
  agreement or promise by defendant to terminate only for cause and to follow
  a progressive disciplinary procedure (verbal warning, written warning,
  suspension, hearing, termination) based upon its employee handbook and
  policy manual.  See Taylor v. National Life Ins. Co., 161 Vt. 457, 464, 652 A.2d 466, 471 (1993) (personnel policy manuals inconsistent with at-will
  relationship may serve as evidence of contract requiring progressive
  discipline and good cause for termination).  Defendant countered that
  plaintiff was an employee at-will and denied that the manual suggested
  otherwise, noting it contained an express disclaimer of intent to create an
  employment contract.

       The court instructed the jury on several theories of liability,
  including implied contract, promissory estoppel, and termination in
  violation of public policy.  The jury returned a general verdict in favor
  of plaintiff and awarded him $58,024.  The trial court denied defendant's
  subsequent motions for judgment notwithstanding the verdict, remittitur,
  or, in the alternative, a new trial.  This appeal followed.

       Defendant first contends the trial court erroneously responded to a
  jury question concerning the breach of contract claim.  During
  deliberations, the court received the following question

 

  from the jury:  "What is the specific question(s) that we need to answer in
  coming to our decision . . . regarding which party prevails, i.e.,  was
  there a contract or implied contract? If so, was it breached, etc."  After
  discussing with counsel various possible responses, the court -- with
  counsel's approval -- reread its original instructions on breach of
  contract.  Defendant now objects to the following specific language in the
  charge: ". . . but whether defendant could terminate [plaintiff's]
  employment at any time for any reason depends on how you decide the terms
  of his contract, how the terms of the contract were modified."  Defendant
  asserts that the instruction erroneously informed the jury that the
  contract had, in fact, been modified, rather than leaving that issue for
  the jury's determination.  See Farnum v. Brattleboro Retreat, Inc., ___ Vt.
  ___, 671 A.2d 1249, 1254 (1995) (whether conflicting provisions of employee
  manual create an implied contract is a jury question); Logan v. Bennington
  College Corp., 72 F.3d 1017, 1022 (2d Cir. 1995) ("Under Vermont law,
  disputes concerning the agreed-upon terms and conditions of an employment
  contract are an issue of fact for the jury to decide.").

       Defendant did not object, however, to the giving of the original
  instruction, and expressly concurred in the decision to reread the
  instruction in response to the jury question.(FN1)  Thus, defendant has
  waived any claim of error on appeal.  V.R.C.P 51(b) ("No party may assign
  as error the giving or the failure to give an instruction unless that party
  objects thereto before the jury retires to consider its verdict, stating
  distinctly the matter objected to and the grounds of the objection.");
  Winey v. William E. Dailey, Inc., 161 Vt. 129, 137, 636 A.2d 744, 750
  (1993); Ainsworth v. Franklin County Cheese Corp., 156 Vt. 325, 332-33, 592 A.2d 871, 875 (1991). Furthermore, the instructions read as a whole clearly
  informed the jury of its responsibility to determine whether the at-will
  employment relationship had been modified. Winey, 161 Vt. at 143, 636 A.2d 
  at 753 ("In reviewing jury instructions, we look at them as a whole, not
  piecemeal.").  The claim of error is thus without merit.

       Assuming the jury determined that the employer's handbook and policy
  manual modified the at-will employment relationship, defendant next
  contends the evidence established just cause under the contract to dismiss
  plaintiff immediately rather than follow the progressive disciplinary
  procedures set forth in the policy manual.  Defendant's argument, in
  essence, is that no credible evidence supported the jury's verdict and that
  its motion for judgment notwithstanding the verdict should have been
  granted.  Whether plaintiff's conduct justified his immediate suspension
  and termination was the heart of the dispute at trial, and the evidence was
  sharply in conflict. Plaintiff denied that he read confidential documents
  on his supervisor's desk, denied that he had sexually harassed a co-worker,
  and claimed that the note that precipitated his dismissal was written to
  himself while he was under enormous stress and was never intended to be
  read by anyone else.  Several witnesses testified that plaintiff was a good
  worker and that any problems on the job stemmed from over-conscientiousness
  compounded by a learning disability, which hindered his ability to process
  verbal instructions.  The jury could thus reasonably have determined that
  plaintiff's misconduct did not justify immediate termination and that he
  should have been given further verbal and written warnings.  Accordingly,
  the verdict must be upheld. See Claude G. Dern Elec., Inc. v. Bernstein,
  144 Vt. 423, 426, 479 A.2d 136, 138 (1984) ("if the verdict is justified by
  `any reasonable view of the evidence, it must stand.'"); Farnum, ___ Vt. at
  ___, 671 A.2d  at 1256 ("if any evidence fairly or reasonably supports
  nonmoving party's claim, judgment notwithstanding verdict would be
  improper").

       Finally, defendant contends the award of damages was unsupported by
  the evidence and

 

  that, consequently, the court erred by denying its motion for remittitur
  and a new trial on the issue of damages.  The measure of damages for
  wrongful termination of an employment contract is the amount the plaintiff
  would have earned absent the breach, less what he actually earned or could
  have earned by the exercise of reasonable diligence.  Benoir v. Ethan
  Allen, Inc., 147 Vt. 268, 272, 514 A.2d 716, 719 (1986).  In Jackson v.
  Rogers, 120 Vt. 138, 150, 134 A.2d 620, 627 (1957), we reaffirmed the
  longstanding rule to be applied in reviewing jury awards in circumstances
  such as those presented here:

       If the verdict can be justified upon any reasonable view of the
    evidence, it must stand.  To warrant interference where there is no
    standard of damages disclosed by a contract, or otherwise ascertainable by
    exact evidence of pecuniary loss, the amount must be clearly shown to have
    been grossly insufficient or excessive and the fact that the verdict has
    received the express approval of the trial court inclines us strongly in
    its favor.

  See also Winey, 161 Vt. at 144, 636 A.2d  at 753; In re Estate of Boisvert,
  135 Vt. 69, 73-74, 370 A.2d 209, 212 (1977).

       Plaintiff gave his own estimate at trial of his hourly wages and
  average work week and the value of his employment benefits and tips. 
  Although there was some evidence that the number of hours worked per week
  varied, the average of forty hours was supported by the evidence. 
  Defendant's president confirmed the hourly wage rate for custodians in
  plaintiff's position.  Plaintiff also testified about his efforts to secure
  subsequent employment.  The total lost wages and compensation over the
  four-year period between his termination and trial exceeded $71,000.  The
  evidence was thus sufficient for the jury to "estimate the amount [of
  damages] within reasonable limits" and "with reasonable certainty." 
  Benoir, 147 Vt. at 272, 514 A.2d  at 719.  We find no basis to reverse the
  jury's verdict and no error in the trial court's denial of the motion for
  remittitur and new trial.

       Affirmed

     BY THE COURT:




                                   _______________________________________
                                   John A. Dooley, Associate Justice

                                   _______________________________________
                                   James L. Morse, Associate Justice

                                   _______________________________________
                                   Denise R. Johnson, Associate Justice


       Note: Chief Justice Allen sat for oral argument in this matter but did
  not participate in the decision.

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                                  Footnotes

FN1.  Indeed, the record discloses that the trial court specifically
  tailored the breach of contract instruction to accommodate defendant's
  expressed concern that it preserve the issue for the jury.