Payne v. Rozendaal , 147 Vt. 488 ( 1986 )

Hill, J.

The plaintiffs, all former employees or representatives of former employees of Nordic Ford, Inc., commenced an action, in superior court, against the defendants. The plaintiffs claimed in Count I of their complaint that they were discharged from their employment solely on the basis of their age, and that such discharge is in contravention of state law. Pursuant to a motion for summary judgment filed by the defendants, the court dismissed this claim of the plaintiffs because it found no state law in existence at the time of the discharge which would have restricted the defendants’ right to discharge the plaintiffs on the basis of their age. The court also dismissed plaintiffs’ claims for intentional and negligent infliction of emotional distress and the claim for the wrongful death of one plaintiff as well as that plaintiff’s spouse’s claim for loss off consortium and consequential damages. The court dismissed these claims because it determined they could not be sustained in the absence of a viable claim for a wrongful discharge. Because we find that the plaintiffs presented a viable claim for recovery under state law for wrongful discharge, we reverse the superior court’s dismissal of these claims.

The plaintiffs also alleged that defendants, Getting Organized, Inc. and its agent, Tommy Styles, tortiously interfered with the plaintiffs’ employment contracts, by advising Nordic Ford, Inc. to discharge the plaintiffs because of their age. These defendants moved to dismiss this claim, or to have summary judgment granted in their favor, because they claimed they were privileged to act as they did. The court denied the motion after determining that justification for an interference with a contractual relationship is an affirmative defense, and that as a matter of law, the defendants had not established the defense of justification. We agree and affirm the superior court’s denial of summary judgment on this claim.

I.

We will first address the plaintiffs’ appeal from the granting of summary judgment, in favor of the defendants, on all but one count of the plaintiffs’ complaint.

On appeal from an order granting summary judgment, we must assume that the facts asserted by the nonmoving party, if supported by affidavits or other evidence, are true. Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388, 1389 (1981). When viewed in this light, the facts are as follows.

In the late fall of 1979, automobile sales of Ford Motor Company were on a decline nationwide. At this time, Nordic Ford, Inc. had a large inventory of 1979 automobiles. With interest rates high at this time, and a general slowdown in the national economy, Nordic was forced to sell its 1979 automobiles with a small margin of profit. Consequently, Nordic’s profits for 1979 were lower than expected.

Early in 1980, Nordic’s president, Jan Rozendaal, sought the advice of an “efficiency firm” from Birmingham, Alabama named Getting Organized, Inc.. Tommy Styles, a representative from this firm, visited Nordic and interviewed a number of Nordic’s employees. At the conclusion of a day of interviews, Styles met with Rozendaal and Nordic’s general manager, Albert Trepanier. Styles said to the two of them that Nordic’s new and used car departments had “a retirement home image” with only two employees age thirty or under and with one employee who was sixty-seven years old. Styles then recommended that he be allowed to change this. He suggested he use people from his firm to interview new people and replace the current employees with “young go-getters.”

The following day, Trepanier met with Rozendaal and Rozendaal told Trepanier that he thought Styles’ advice was good and that “we will do what he said.” Rozendaal also informed Trepanier that Styles had recommended that Trepanier be fired, along with the others. Trepanier then resigned, refusing to fire the other employees. Six of Nordic’s employees, all over age fifty, were then fired. The employees retained by Nordic were all considerably younger.

For the purposes of ruling on the motions for summary judgment, the parties conceded that all the employees were dismissed solely on the basis of age, and that all the employees were working at Nordic under an “at will” employment contract. Thus no factual questions remained which would preclude an order of summary judgment being entered. V.R.C.P. 56.

In Vermont, under an “at will” employment contract, an employee may be discharged at any time with or without cause, “unless there is a clear and compelling public policy against the reason advanced for the discharge.” Jones v. Keogh, 137 Vt. 562, 564, 409 A.2d 581, 582 (1979) (emphasis in original). The plaintiffs claim that a discharge from employment solely on the basis of age contravenes a clear and compelling public policy. We agree.

Although the parties to an at will employment contract necessarily have substantial leeway in terminating their contract, such rights are not absolute. Courts vary on the extent to which considerations of public policy will curtail an employer’s right to discharge an at will employee. See Kovalesky v. A.M.C. Associated Merchandising Corp., 551 F. Supp. 544, 547-48 (S.D.N.Y. 1982) (under N. Y. law, discharge must contravene specific public policy clearly expressed in laws, executive orders, regulations or constitution); Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 378-79, 710 P.2d 1025, 1033-34 (1985) (constitution, statutes and court decision form basis of public policy); Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878-79 (1981) (discharge may contravene public policy not expressed in specific statutory or constitutional provisions); Martin v. Platt, 179 Ind. App. 688, 691-93, 386 N.E.2d 1026, 1028 (1979) (public policy exceptions limited to legislative directives); Cloutier v. Great Atlantic & Pacific Tea Co., 121 N.H. 915, 922, 436 A.2d 1140, 1144 (1981) (public policy exceptions not limited to statutory pronouncements and may be based on nonstatutory policies); Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834, 840 (1983) (discharge must be “contrary to a fundamental and well-defined public policy as evidenced by existing law.”).

Defendants argue that there is no public policy in Vermont prohibiting the discharge of an at will employee solely on the basis of age because at the time of the discharge, there was no statutory directive concerning age discrimination. It was not until the year following the plaintiffs’ dismissals that the Vermont Legislature amended the Vermont Fair Employment Practices Act and made it an unlawful employment practice to discriminate against any individual on the basis of age. 21 V.S.A. § 495.

We do not find the absence of a statutory directive concerning age discrimination to be dispositive of whether a public policy against such practices existed at the time of the discharges. As the Supreme Court of Ohio stated in Pittsburgh, Cincinnati, Chicago & St. Louis Railway v. Kinney, 95 Ohio St. 64, 115 N.E. 505 (1916):

In substance, [public policy] may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.

Sometimes such public policy is declared by. Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man. It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic. When a course of conduct is cruel or shocking to the average man’s conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute, or decree of court. It has frequently been said that such public policy, is a composite of constitutional provisions, statutes, and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination. When a contract is contrary to some provision of the Constitution, we say it is prohibited by the Constitution, not by public policy. When a contract is contrary to a statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy. Public policy is the cornerstone — the foundation — of all Constitutions, statutes, and judicial decisions; and its latitude and longitude, its height and its depth, greater than any or all of them. If this be not true, whence came the first judicial decision on matter of public policy? There was no precedent for it, else it would not have been the first.

Id. at 68-69, 115 N.E. at 507.

In accepting this definition of “public policy,” we necessarily reject defendants’ argument, and the holdings of some courts, that the public policy exception to at will employment contracts must be legislatively defined. See, e.g., Kovalesky, supra; Martin, supra; Brockmeyer, supra. Statutes may themselves modify the at will employment doctrine. E.g., 29 U.S.C. § 623 (federal law prohibiting age discrimination); 21 V.S.A. § 495 (Vermont Fair Employment Practices Act). Such modifications, however, are separate from any public policy exception. In the absence of a state statute providing a remedy for age discrimination in existence at the time of the discharges, we do not find that the later passage of such a statute preempts a common law cause of action.^* We also follow other courts in finding that the Federal Age Discrimination and Employment Act (ADEA), 29 U.S.C. §§ 621-634, does not preempt state causes of action for age discrimination. Adler v. American Standard Corp., 538 F. Supp. 572 (D. Md. 1982); Cancellier v. Federated Department Stores, 672 F.2d 1312 (9th Cir.), cert. denied, 459 U.S. 859 (1982).

We hold today that the discharge of an employee solely on the basis of age is a practice so contrary to our society’s concern for providing equity and justice that there is a clear and compelling public policy against it. This situation is unlike others in which this Court has declined to find the existence of a clear and compelling public policy. In Jones v. Keogh, supra, an employee brought an action against her employer claiming to have been wrongfully discharged in retaliation for asserting her rights in connection with vacation time and sick leave. Jones, supra, 137 Vt. at 563, 409 A.2d at 582. We said in that case that “[w]hile full employment and employer-employee harmony are noble goals to which society aspires, they alone do not present the clear and compelling public policies upon which courts have been willing to rely in upholding an action for discharge of an employee at will.” Id. at 564, 409 A.2d at 582. Similarly, in Brower v. Holmes Transportation, Inc., 140 Vt. 114, 435 A.2d 952 (1981), we found no clear. and compelling public policy against the discharge of a “causal employee,” hired to fill in for vacations and sick days, when no malice on the part of the employer was either asserted or shown. Id. at 116-17, 435 A.2d at 953-54. In both cases, redress was sought for private concerns for which courts have generally held no public policy exists against a discharge on such basis. E.g., Roberts v. Atlantic Richfield Co., 88 Wash. 2d 887, 568 P.2d 764 (1977); see also Wagenseller v. Scottsdale Memorial Hospital, supra, 147 Ariz. at 379, 710 P.2d at 1034 (“Where the interest involved is merely private or proprietary, the exception does not apply.”).

The instant case is different. Here we are faced with a matter of discrimination on the basis of age. Both the United States Congress and the Vermont Legislature have recognized the existence of the problem of age discrimination and have taken action to provide remedies for such. 29 U.S.C. § 623; 21 V.S.A. § 495. In 1975, Governor Thomas Salmon, by executive proclamation, designated March 9-15 as “Older Worker Week.” In so doing, he recognized the problem of age discrimination and stated that “the State of Vermont has initiated efforts to hasten elimination of an unrealistic bias against older workers . . . .” To fail to recognize a common law cause of action when there is a clear and compelling public policy against age discrimination and when there is no state statutory provision providing an avenue of relief for the plaintiffs would be to shirk our responsibility to recognize and act upon societal changes as they affect and help develop the law of this state as interpreted by its courts.

The superior court thus erred in dismissing plaintiffs’ claims for wrongful discharge. Plaintiffs’ other claims, which the court also dismissed because it determined they were dependent upon a valid claim for wrongful discharge, must now be reconsidered by the trial court in light of our holding today.

II.

The second part of this opinion addresses the appeals taken by two of the defendants, Getting Organized, Inc. and Tommy Styles. In their complaint, plaintiffs alleged that the conduct of the two defendants in recommending that the plaintiffs’ employment be terminated solely on the basis of age constituted a tortious interference with plaintiffs’ contractual relationship with Nordic. As a proximate result of such actions, plaintiffs claim to have suffered loss of employment, irreparable financial harm and severe emotional and physical distress. Defendants moved to dismiss these claims. They argued that wrongfulness is an element in the tort of intentional interference with a contractual relationship, and that the plaintiffs failed to allege any wrongful conduct by the defendants. The trial court denied defendants’ motion. It determined that “justification for interference in the business relations of another is an affirmative defense which the defendant has the burden of proving.” It also determined that whether an occasion exists which justifies defendants’ conduct is a question for the jury and that, consequently, summary judgment in favor of the defendants was inappropriate.

This Court has stated that “[e]xcept for special justification, the law has long recognized liability against one who intentionally intrudes to disrupt an existing contract relation.” Mitchell v. Aldrich, 122 Vt. 19, 22, 163 A.2d 833, 835-36 (1960). Such liability is imposed even though “the contract is terminable at will or unenforceable against the promisor . . . .” Id. at 23, 163 A.2d at 836. Furthermore, “[Justification for interference in the business relations of another is an affirmative defense, and the intruder has the burden of proving his privilege to intervene. Whether an occasion exists which justifies the invasion of another’s contract or business relations by the defendant is generally a question for the jury.” Id. at 24, 163 A.2d at 836-37 (citations omitted).

Under the rule as stated in Mitchell, supra, and the authorities cited therein, it is clear that in Vermont, any justification for an intentional interference with a person’s contractual relation with another must be set forth and proved by the defendant as an affirmative defense. Any further requirement that the plaintiff allege wrongful interference has been satisfied in this case insofar as the plaintiffs’ complaint stated the defendants’ actions were committed “knowingly, intentionally, wilfully, maliciously, [and] without just cause.”

The plaintiffs having sufficiently alleged a tortious interference with their contractual relations with Nordic, and the defendants’ defense of justification or privilege being a question for resolution by the jury, the superior court committed no error in denying defendants’ motion for dismissal or summary judgment on this count of the plaintiffs’ complaint.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

* Since no state statutory remedy was available for age discrimination at the time of the plaintiff’s’ discharges, we express no opinion here regarding the circumstances under which, or the factors to be taken into consideration for determining when, such a state statutory remedy preempts a common law cause of action for age discrimination.