Monge v. Beebe Rubber Co.

Grimes, J.,

dissenting:

In my view, reasonable men could not find for the plaintiff on the evidence in this case even under the new rule of law which the court has fashioned today. The substance of the plaintiff’s claim is that she was discharged because she did not accept an invitation of her foreman to go out with him. Although it was denied by the foreman, the jury could *135 find on plaintiff’s testimony alone that the invitation was extended. It was a single instance, however, and there is no claim that it was repeated or further pursued. It is not findable that this single refusal was the reason for the termination of plaintiff’s employment. There was evidence, and none to the contrary, that it was a shortage of work and her lowest seniority that caused her press machine to be shut down and her loss of overtime. When her machine was shut down, she was given work on a degreasing machine at a higher rate of pay than when she started. When she told the foreman she “needed the money” from the overtime, he offered what from the uncontradicted evidence was the only work available to help her out until her overtime was restored. The only so-called harassment and ridicule claimed amounts to no more than once saying “How do you like my floor boy?” and “My wife wouldn’t do that.” It is uncontradicted that when she was having trouble with annoying phone calls ancP needed help, the personnel manager personally went to the police and then to her home to talk with her and her husband; that when she could not pick up her Christmas turkey, the foreman personally delivered two instead of one to her home; and that he also at her request gave her husband, a mechanic, work on his automobile.

Her final termination was in accordance with established company rules and she neither contested the termination nor pursued the grievance procedures under the union contract. She was denied unemployment compensation on the ground that she was a “voluntary quit” and did not appeal that finding-

A finding that this company discharged the plaintiff because she refused her foreman a date eight months before could not reasonably be made and should not be permitted to stand.

Apart from the facts, I cannot subscribe to the broad new unprecedented law laid down in this case. Frampton v. Central Indiana Gas Co., 297 N.E.2d 425 (Ind. 1973), cited for its support was a tort action to recover actual and punitive or exemplary damages for a discharge in retaliation for filing a workmen’s compensation claim. The court treated the threat of discharge as a “device” prohibited by the Workmen’s *136 Compensation Act to avoid the employer’s statutory obligations. The Indiana court stated that it could find no case anywhere to support such an action but held the discharge to be an intentional wrong prohibited by statute and in clear contravention of the public policy. That case, however, is not authority for the court’s new contract law. Petermann v. Teamsters Local 396, 174 Cal. App. 2d 184 , 344 P.2d 25 (1959) is also inapposite. There, the court allowed recovery only in order to uphold a public policy against perjury. The protection given by the union contract governing the right to discharge and the grievance procedures therein established remove this plaintiff from that class of employee for which concern is expressed in the law review articles cited by the court. Not a single case has been found which supports the broad rule laid down by the court to support an action for breach of contract in this case. In fact, the law everywhere, uniformly supported by scores of cases is that an employment contract for an indefinite period is one “at will and is terminable at any time by either party” regardless of motive for “good cause, bad cause or no cause” and for “any reason or no reason”. Harp v. Administrator, Bureau of Unemploy. Comp., 12 Ohio Misc. 34 , 230 N.E.2d 376 (1967); Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423 (7th Cir. 1962); Reale v. International Bus. Mach. Corp., 34 App. Div. 2d 936, 311 N.Y.S.2d 767 (1970); Mallard v. Boring, 182 Cal. App. 2d 390 , 6 Cal. Rptr. 171 (1960); Swaffield v. Universal Ecsco Corp., 271 Cal. App. 2d 147 , 76 Cal. Rptr. 680 (1969).