Cohen responding that, “I understand that there are two sides to every story ....”
How later courts described this case
- Cohen responding that, “I understand that there are two sides to every story ....”
- even if contract is indefinite, an express limitation, such as an employer’s right to terminate an employee of indefinite duration only for cause found in employer’s handbook, would be given effect
- collecting New York and federal cases on this issue
- “[I]t is clear that a second judge has the power to grant summary judgment despite another judge’s previous denial of summary judgment.”
Written by the judges who cited it.
The opinion
IRVING R. KAUFMAN, Circuit Judge
(dissenting):
*1006 I am in agreement with my colleagues in the majority that, under New York law, unless an employment is for a specified period, it is presumed to be an employment at will, and that, “absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 298 , 448 N.E.2d 86, 91 , 461 N.Y.S.2d 232, 237 (1983). I strongly disagree, however, that the statement in Robert Kopecek’s August 14 letter that “the occupant of the position serves at the pleasure of the supervisor for the first two years” is not an express limitation on the university’s right to terminate Ms. Wright.
Although my brothers never fully describe their view of what is an express limitation, apparently they believe that, for a restriction to be express, it must be explicit, definitive and unambiguous. Hence, on the theory that “serves at the pleasure of the supervisor for the first two years” is susceptible of more than one meaning, the majority concludes that the restriction on which the plaintiff relies is not express.
In my opinion, the decision in Murphy cannot bear the majority’s interpretation. There, the plaintiff sued for breach of contract alleging that his discharge after twenty-three years was an act of bad faith. Completely lacking any evidence that the defendant had in fact agreed to restrict its right to terminate his employment, the plaintiff urged the court to impose a limitation as a matter of law, on the theory that in all contracts the law implies an obligation on the part of the parties to act fairly and in good faith.
The Court of Appeals dismissed the complaint. Recognizing that in certain circumstances an obligation of good faith may be implied, the court refused to supply such a covenant because it would be inconsistent with other terms of the parties’ agreement. Since the contract specified an at will employment, and the law affords an employer in that relationship an unfettered right of discharge, the court reasoned, it would be incongruous to infer that the employer impliedly agreed to a provision which would be destructive of his right to terminate. Although the parties may by express agreement limit the employer’s right of discharge, the court concluded, where there is no evidence of any express restriction the court will not imply one.
The salient distinction in the Murphy case, therefore, is between a restriction on an employer’s discharge right that the parties actually bargained for and agreed to, e.g., Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458 , 443 N.E.2d 441 , 457 N.Y.S.2d 193 (1982), and, a restriction imposed on the parties by the courts as an estimation of what in all likelihood the parties would have agreed to had they addressed the matter during their negotiations, e.g., Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88 , 118 N.E. 214 (1917), or as a means of advancing public policy goals, e.g., Monge v. Beebe Rubber Co., 114 N.H. 130, 133 , 316 A.2d 549, 551 (1974).
Thus, where a plaintiff points to contractual language addressing the subject of the employer’s right of discharge, it seems to me, then he or she has satisfied the express limitation requirement. See Weiner, 57 N.Y.2d at 458 , 443 N.E.2d at 441 , 457 N.Y.S.2d at 193 (statement in handbook on personnel policies that company will resort to dismissal only for. cause which was incorporated by reference into the contract of employment satisfied the express limitation requirement). Conversely, where the plaintiff does not rely on any evidence of an actual agreement pertinent to the employer’s termination rights, then summary judgment for the defendant is appropriate. See Sabetay v. Sterling Drug Inc., 69 N.Y.2d 329 , 506 N.E.2d 919 , 514 N.Y.S.2d 209 (1987) (no express agreement where corporate documents relied on by plaintiff are not part of the employment contract); Collins v. Holeston Datsun, Inc., 120 A.D.2d 952, 953 , 503 N.Y.S.2d 203, *1007 204 (4th Dept.1986) (no express limitation where the provision relied on does not address the subject of termination rights).
Applying this rule to the present case, I am convinced that Ms. Wright has demonstrated an express limitation on the university’s right to discharge her. Without doubt, the August 14 letter from Robert Kopecek was part of the written employment contract. Indeed, that letter explicitly provided that “this position has the following characteristics and specific conditions of employment.” Equally plainly, the statement that she would serve “at the pleasure of the supervisor for the first two years” addresses the subject of the university’s right of termination.
Of course, as in any action based on an express agreement, to survive a motion for summary judgment, not only must the plaintiff point to some contractual language pertinent to the alleged breach, but that language must also be sensibly susceptible of the interpretation urged by the plaintiff. See Tiranno v. Sears Roebuck & Co., 99 A.D.2d 675, 676 , 472 N.Y.S.2d 49, 50 (4th Dept.1984) (statement that the company may terminate an individual’s employment at any time his or her work does not measure up to company standards is susceptible of being interpreted as requiring just cause); Collins, 503 N.Y.S.2d at 204 (clause assuring employees of steady employment as long as they perform well is not susceptible of being interpreted as requiring just cause.)
Here, neither the university anywhere in its presentation nor my colleagues in their majority opinion proffer even a plausible suggestion of what “serves at the pleasure of the supervisor for the first two years” meant if it did not mean that, after the expiration of two years, Ms. Wright would no longer be subject to termination at the mere whim of her supervisor. I am not prepared to rule, therefore, that no reasonable fact-finder could attribute to the contract the same meaning as the plaintiff does.
Accordingly, I would reverse the district court’s order granting summary judgment to the university and remand for a trial and a jury determination as to whether the language relied on by Ms. Wright means what she says it does.