Richard M. Acey, Plaintiff and Appellant, v. Litton Systems, Inc., Defendant and Appellee.

Case No. 20010132-CA.Utah Court of Appeals.
Filed May 2, 2002. (Not For Official Publication)

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Third District, Salt Lake Department, The Honorable Stephen L. Henriod.

David J. Holdsworth, Sandy, for Appellant.

Derek Langton, Salt Lake City, for Appellee.

Before Judges Bench, Davis, and Thorne.

BENCH, Judge:

Summary judgment is proper only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c); see, e.g., Caldwell v. Ford,Bacon Davis Utah, Inc., 777 P.2d 483 (Utah 1989). We accord no deference to the trial court’s conclusions and review the questions under a correctness standard because summary judgment is a question of law.See Cook v. Zions First Nat’l Bank, 919 P.2d 56, 59 (Utah Ct.App. 1996). Although the “existence of an implied-in-fact contract is a factual question . . . the court retains the power to decide whether, as a matter of law, a reasonable jury could find that an implied contract exists.”Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 306 (Utah 1992) (citation omitted).

Acey cites Cook in support of his argument against summary judgment. InCook, we reversed the trial court’s decision granting summary judgment, concluding that Cook and her employer had an “express contract that governed Cook’s accrual and use of sick leave,” which was not negated by Cook’s status as an at-will employee. 919 P.2d at 61. The instant case does not involve an express contract regarding the use of a benefit. Instead, our case involves whether there is an implied-in-fact contract and whether there was a breach of the implied covenant of good faith and fair dealing. Therefore, Cook is not instructive here.

In Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1002 (Utah 1991), the Utah Supreme Court stated:

[F]or an implied-in-fact contract term to exist, it must meet the requirements for an offer of a unilateral contract. There must be a manifestation of the employer’s intent that is communicated to the employee and sufficiently definite to operate as a contract provision. Furthermore, the manifestation of the employer’s intent must be of such a nature that the employee can reasonably believe that the employer is making an offer of employment other than employment at will.

Id. (footnotes omitted) (emphasis added). Acey’s claim of an implied-in-fact contract relies upon the written drug use and testing policies, and a bulletin board posting notifying employees of the policies. These drug use and testing policies do not meet the requirements specified in Johnson to become an offer of employment other than at will, because they do not manifest any intention to change the at-will relationship. See id. Given such policies, an employee would not “reasonably believe that the employer is making an offer of employment other than employment at will.” Id. (footnote omitted).

Furthermore, implementing drug-use policies and notifying employees about the program does not meet the requirements as specified in Litton’s disclaimer to change an employment relationship to something other than at will. “[W]hen an employee handbook contains a clear and conspicuous disclaimer of contractual liability, any other agreement must be construed in light of the disclaimer.” Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 334 (Utah 1992) (citation omitted). Litton’s disclaimer is quite clear regarding at-will employment, and is conspicuous because it is typed in capital letters and located within the first few pages of the employee handbook. In light of the disclaimer, we conclude that no reasonable fact-finder could have determined that an implied-in-fact contract existed. See id.

Acey also argues that the trial court erred in granting summary judgment on his claim for breach of an implied covenant of good faith and fair dealing. Utah cases have consistently held that there is “an implied covenant of good faith and fair dealing in either at-will or other sorts of employment contracts.” Dubois v. Grand Central, 872 P.2d 1073, 1078
(Utah Ct.App. 1994). However, implied covenants of good faith and fair dealing cannot create “new, independent rights or duties not agreed upon by the parties”; nor can implied covenants “change an indefinite term, at-will employment contract into a contract that requires an employer to have good cause to justify a discharge.” Brehany v. Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991). Acey tested positive for the presence of marijuana in a random drug test and was then placed on probation according to Litton’s policies. Litton discharged Acey during this two-year probation period. Litton did not need “good cause to justify [Acey’s] discharge” because Acey was an at-will employee. Id. Accordingly, we conclude that there is “no genuine issue as to any material fact.” Utah R. Civ. P. 56(c).

We therefore affirm the summary judgment.

WE CONCUR: James Z. Davis, Judge, William A. Thorne Jr., Judge.