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12/13/91 PAULA NICKENS v. LABOR AGENCY METROPOLITAN

December 13, 1991

PAULA NICKENS, APPELLANT
v.
LABOR AGENCY OF METROPOLITAN WASHINGTON, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Joseph M. Hannon, Motions Judge.

Before Rogers, Chief Judge, and Terry and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

Wagner, Associate Judge: This appeal arises out of a complaint for wrongful discharge filed by appellant, Paula Nickens, against her former employer, Labor Agency of Metropolitan Washington (Labor Agency or the Agency), and its president, Joslyn N. Williams. The trial court granted summary judgment for appellees. Appellees' summary judgment motion was based upon its claim that the undisputed facts showed that appellant was laid off due to fiscal cutbacks as permitted under the Agency's personnel policies and that appellant was an at-will employee, terminable for any reason or for no reason at all at any time. We conclude that material issues of fact are in dispute which preclude summary judgment in this case; therefore we reverse.

I.

In support of their motion for summary judgment, appellees provided an affidavit setting forth the following facts, which they contend to be undisputed. Appellant was hired on May 9, 1984 by the executive director for the Labor Agency at the request of the District of Columbia Department of Employment Services (DOES), where she had been employed previously. According to appellees, appellant was laid off due to a funding cutback in the program for which she was working, the Displaced Workers Program. The program was funded by DOES. Mr. Daniel Kiernan, the former Director of the Agency, stated in his affidavit that appellant understood that her position was conditioned on continuation of funding for the program. During the first six months of employment, appellant was a probationary or "conditional" employee under the Agency's personnel policies. According to Mr. Kiernan, the displaced workers contract was to expire on September 30, 1984, and he anticipated no further extensions. Therefore, he sent appellant a letter notifying her that she was being laid off for that reason. Although a new Displaced Workers Program was established in December 1984, the program differed in scope and concept from the previous program. Employees for the new program were hired by its new administrator, and appellant did not apply for a position. According to Mr. Kiernan, neither he nor anyone on behalf of the Agency promised appellant permanent employment. Additionally, the personnel policies provided for termination due to lack of funding. In appellees' view, appellant conceded at a deposition that the personnel policies did not form a contract. Thus, appellees contended that appellant's allegations were factually deficient to support her claim.

Appellees argued in their motion for summary judgment that appellant was an at-will employee whose services were terminable at any time by either party. See Sullivan v. Heritage Found., 399 A.2d 856, 860 (D.C. 1979); see also Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C. 1961). According to appellees, absent was probative evidence that the parties intended the personnel policies to create a contract. Moreover, they contended the lay-off which occurred here was in accordance with the Agency's personnel policies. Apparently, the trial court agreed and granted appellees' motion without opinion.

The facts as gleaned from appellant's verified complaint and from deposition references cited present a different picture. Appellee, Mr. Joslyn Williams, was president of the Labor Agency at the time appellant was hired and remained in that position at the time she filed her complaint in this case some three years later. Appellant had an intimate, personal relationship with Mr. Williams for four years prior to taking the job with the Labor Agency. It was Mr. Williams who convinced appellant to leave a permanent position with the District of Columbia government to assist him at the Agency, and he promised her that she would have a job there for as long as he did. Therefore, appellant went to work for the Labor Agency on May 9, 1984.

On September 18, 1984, during off-duty hours and away from the job site, appellant alleges that Mr. Williams assaulted her. The very next day Mr. Williams ordered the executive director of the Agency to place appellant on administrative leave, and he did so on September 19, 1984. On October 1, 1984, the executive director gave appellant a notice of termination to be effective immediately. Although the termination letter specified that the reason for the "lay-off" was the Agency's financial inability to continue the Displaced Workers Program, a representative of the Labor Agency's funding agency stated in deposition testimony that the Labor Agency could continue to spend money for the program subject to reimbursement and that no substantial funding gap occurred for the program. The Agency's director admitted at deposition that the Agency continued to perform work for the program, although it had no contract with its funding source. Evidence was also cited that the Displaced Workers Program remained in operation in October and November 1984, and the Labor Agency was reimbursed by its funding source in December 1984 for out-of-pocket expenditures made for the program. Appellant cited deposition testimony of a witness which showed that even if funding for a program were discontinued, it was the Agency's practice to use its other programs to continue the unfunded program. According to another witness, it was also the Labor Agency's practice to do everything possible to avoid a lay-off. Moreover, appellant contended that she was hired as a job developer and that she was not working under the program for which the agency claimed it lacked funds.

Mr. Williams admitted that he recommended that appellant be terminated or placed on administrative leave, in part, because of the altercation. Although the executive director maintained that the "lay-off" of appellant was due to lack of funding, one witness gave deposition testimony that he heard the executive director say that appellant was terminated because of the altercation with Mr. Williams.

Appellant argues that material factual issues are in dispute with respect to whether the Labor Agency's Personnel Policies Manual gave rise to contractual rights establishing preconditions to termination of her employment which the Labor Agency failed to follow. Appellant also argues that she has set forth a prima facie case against appellee Williams for tortious interference with her employment contract requiring reversal of summary judgment on that claim.

II.

In considering the grant or denial of a motion for summary judgment, our standard of review is the same as that of the trial court when it considers the motion initially. Young v. Sherwin-Williams Co., Inc., 569 A.2d 1173, 1175 (D.C. 1990). Summary judgment is appropriate only if there are no genuine issues of material fact in dispute and if the moving party is entitled to judgment as a matter of law. Id.; Holland v. Hannan , 456 A.2d 807, 814 (D.C. 1983); Nader v. de Toledano, 408 A.2d 31, 41-42 (D.C.), cert. denied, 444 U.S. 1078, 62 L. Ed. 2d 761 , 100 S. Ct. 1028 (1980); Super. Ct. Civ. R. 56 (c). " motion for summary judgment should be granted if (1) taking all reasonable inferences in the light most favorable to the nonmoving party, (2) a reasonable juror, acting reasonably, could not find for the nonmoving party, (3) under the appropriate burden of proof." Nader, 408 A.2d at 43. The moving party has the burden of demonstrating the absence of material disputed issues and the right to judgment as a matter of law. Wyman v. Roesner, 439 A.2d 516, 519 (D.C. 1981). An examination of the pleadings, the affidavit and other relevant documents presented against the law applicable to appellant's claims shows that appellees failed to meet that burden.

A.

We turn first to appellant's claim for wrongful discharge and the law controlling that cause of action. There is a presumption that a hiring not accompanied by an expression of a specific term of duration creates an employment relationship terminable at will by either party at any time. Sorrells v. Garfinckel's, Brooks Brothers, Miller and Rhoads, Inc., 565 A.2d 285, 289 (D.C. 1989); Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613, 615 (D.C. 1985); Sullivan, supra, 399 A.2d at 860. This presumption can be rebutted by evidence that the parties intended the employment to be for a fixed period, Sullivan, 399 A.2d at 860, or subject to specific preconditions before termination. Washington Welfare, 496 A.2d at 616. Where the parties intend that preconditions be met before termination of the employment relationship, the arrangement is distinguishable from "a pure 'at will' contract." Id. (citing Hodge v. Evans Financial Corp., 228 App. D.C. 161, 163, 707 F.2d 1566, 1568 (1983)). The facts and circumstances surrounding the hiring and the conduct of the parties may provide evidence sufficient to rebut the presumption. Sullivan, 399 A.2d at 860; Washington Welfare, 496 ...


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