Hibbert v. Centennial Villas, Inc. , 56 Wash. App. 889 ( 1990 )

Webster, J.

Janice Darlene Hibbert appeals a summary judgment in favor of Centennial Villas, Inc., her employer, dismissing her action for breach of contract and wrongful discharge.

Facts

Hibbert began working as a night nurse at a Centennial Villas nursing home in February 1983. She received an employee handbook and optional grievance procedure after a 2-week orientation.

The grievance procedure declares, "Centennial Villas, Inc., operates under the principle that employment is terminable-at-will by the employee or the employer". The introduction to the handbook states, "Centennial Villas, Inc., retains the right to amend, modify, or revoke at any time privileges, policies, and procedures specified in this handbook." The handbook grants a right of severance pay to employees terminated without cause. "Employees who are terminated 'for cause' are not entitled to separation pay". The handbook lists specific conduct constituting cause for termination under a section entitled "Discharge-able Offenses". At the end of the list is a statement that Washington and California "retain the terminable-at-will doctrine by which an employer can terminate an employee without cause".

Hibbert read the handbook and understood most of it. She signed a statement of understanding on February 23, 1983:

I certify that I have read, understood and will abide by all rules, regulations, directives and policies contained in the Centennial Villas, Inc. Employee Personnel Policies, a copy of which has been provided to me.

She understood that Centennial Villas could change its policies at any time. She heard and understood verbal representations that the policies were not to be understood as an employment contract. She signed a statement of understanding in June 1983, certifying this:

I also understand that the statements of policy contained in the Personnel Policies are not a contract nor are they to be interpreted as a covenant of employment and [they] may be changed without notice. I also understand that my employment can be terminated with or without cause and with or without notice at any time by me or [Centennial Villas] and that no facility representative has authority to enter into any agreement contrary to the foregoing.

Hibbert signed a third statement in July 1983, which added:

I also understand the Personnel Policies are guidelines only and may be changed by [Centennial Villas] at any time when in the judgment of [Centennial Villas] circumstances so require.

Hibbert allegedly performed her duties satisfactorily through November 1984. Some time before then, she discovered that the front and back doors of the nursing home would not lock properly. She informed the director of nursing services and a maintenance supervisor. Later, she found a foreign substance in a patient's ointment. It appeared to be plastic or glass. Hibbert noted the substance on a chart distributed to nurses and the director. Hibbert allegedly found glass or plastic in another container of ointment, but she never reported this to anyone.

In late November and early December 1984, Hibbert received notice of four work-related infractions. She was accused (1) of not cooperating with a co-worker, (2) not giving medications as prescribed, (3) violating narcotics control procedures by counting drugs alone, and (4) not completing bandage dressings. Centennial Villas fired Hib-bert on December 10, 1984, citing these four infractions as evidence of carelessness and disregard for patient safety.

Employee Handbook

Hibbert argues that the employee handbook created an employment contract whereby she could be terminated only for cause. Generally, employment of indefinite duration is terminable at will by either the employee or employer. Roberts v. ARCO, 88 Wn.2d 887, 894, 568 P.2d 764 (1977). Two exceptions exist in the case of employee handbooks or personnel policy manuals. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984). First, handbooks or manuals may create an express contract to terminate only for cause.

Under this approach the requisites of contract formation, offer, acceptance and consideration are necessary predicates to establishing that policies in an employment manual are part of the employees' original employment contract or part of the employment contract as modified by the parties.

Thompson, at 228. Second, and independent of contractual analysis,

if an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship.

Thompson, at 230. Under the latter theory, it is necessary that "employees justifiably rely on the expressed policies" in order to expect a change in the terminable-at-will relationship. Thompson, at 230, 233; Grimes v. Allied Stores Corp., 53 Wn. App. 554, 768 P.2d 528, review denied, 112 Wn.2d 1025 (1989).

Here, there is no evidence of an express contract changing the terminable-at-will relationship. To the extent the parties expressly agreed on anything, they agreed that Hib-bert's employment was terminable at will. Nor is there an implied contract changing the at-will status. An express agreement affirming the terminable-at-will relationship precludes a party from claiming an implied contract to the contrary. See St. Yves v. Mid State Bank, 111 Wn.2d 374, 379, 757 P.2d 1384 (1988); Grimes; see also Messerly v. Asamera Minerals, (U.S.) Inc., 55 Wn. App. 811, 780 P.2d 1327 (1989) (at-will employment language and disclaimer of contract provision sufficiently conspicuous when contained in handbook introduction); cf. Swanson v. Liquid Air Corp., 55 Wn. App. 917, 781 P.2d 900 (1989) (terminable-at-will handbook provision modified by management's express agreement to give truck drivers one warning before firing, inducing drivers not to seek union representation).

Wrongful Termination

Hibbert next argues that she was discharged in violation of public policy. The public policies allegedly violated are those against abuse and neglect in nursing homes, unsafe work places, and Medicare fraud.

Employees may sue in tort for wrongful discharge when an employer dismisses them for a reason that violates a clear mandate of public policy, either legislatively or judicially recognized. Thompson, at 232. The Legislature has declared a policy against abuse or neglect in nursing homes. See RCW 26.44, 18.51, 70.124, 74.42. We disregard the other policies because the one against Medicare fraud is premised on deliberate abuse and neglect, and the one against unsafe workplaces does not support a common law claim for wrongful discharge. See Jones v. Industrial Electric-Seattle, Inc., 53 Wn. App. 536, 768 P.2d 520 (1989) (statutory cause of action for retaliatory termination under RCW 49.17.160(2) is exclusive remedy).

The remaining inquiry is whether Centennial Villas terminated Hibbert because she reported malfunctioning doors and the presence of glass or plastic in a patient's ointment. Wrongful discharge is an intentional tort. Cagle v. Burns & Roe, Inc., 106 Wn.2d 911, 916, 726 P.2d 434 (1986). Accordingly, there must be evidence to support an inference of intent to discharge for a reason that violates public policy. Centennial Villas articulated legitimate reasons for terminating Hibbert. Therefore, she had the burden of showing that those reasons were a mere pretext—i.e., that there was a conspiracy to prevent the exposure of abuse or neglect at Centennial Villas's nursing home. See Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 136, 769 P.2d 298 (1989) (adopting the burden of proof formula applied in discrimination cases).

The fact that on one occasion facility doors did not lock properly does not raise an inference of willful neglect for patient safety. The isolated presence of glass or plastic in a patient's ointment is also insufficient to prove willful abuse. Hibbert did not treat the matter as anything other than an isolated and unintentional incident. She never reported a second finding to anyone. This is not a case, such as Thompson, where the employer failed to articulate legitimate reasons for a termination. Accordingly, Hibbert's burden is greater than was the plaintiff's in Thompson. See Baldwin. She has not sustained it. See Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 364-65, 753 P.2d 517 (1988) (defendant articulated substantial reasons, including written ones and ones describing objective events; plaintiff's conclusory response failed for lack of specificity).

Affirmed.

Forrest, J., concurs.