JOURNAL ENTRY AND OPINION
MARY EILEEN KILBANE, P.J.:
{¶ 1} Plaintiff-appellant, Global Country of World Peace ("Global"), appeals from the judgment of the common pleas court vacating the decision of the city of Parma Planning Commission that denied Global's final site plan for a conference center and remanding the matter to the planning commission for further proceedings. We affirm.
I. Background
{¶ 2} Global owns real property at the northwest corner of Huffman and Stumph Roads in the city of Parma. In 2006, it applied to the Parma Planning Commission for a similar use permit to build and operate a conference center for multiple mixed uses, including a teaching facility, staff residence, seminar building, retail store, and a peace palace for transcendental meditation and wellness programs. The similar use application was subsequently put on hold and Global pursued approval of a site plan.
{¶ 3} At a planning commission meeting on July 27, 2007, Global received preliminary approval of its revised site plan. Subsequent proposals on the final site plan were heard at commission meetings on October 24 and November 28, 2007, and again on February 27, 2008. At the February meeting, the planning commission denied approval of Global's final site plan.
{¶ 4} Global appealed the decision of the planning commission to the Cuyahoga County Common Pleas Court pursuant to Chapter 2506 of the Revised Code. It argued that the planning commission had erred in denying approval of its final site plan and asked the court to approve the plan. The common pleas court subsequently vacated the planning commission's decision and remanded the matter to the planning commission for further proceedings not inconsistent with its opinion. {¶ 5} In its journal entry and opinion, the common pleas court noted that its review of the briefs and transcript of the planning commission proceedings indicated that some portions of the underlying proceedings were missing, some of the testimony had not been given under oath, and the planning commission had failed to file findings of fact supporting its decision under R.C. 2506.03(A)(5). Accordingly, pursuant to R.C. 2506.03(B), the trial court scheduled an evidentiary hearing to give the parties an opportunity to present additional evidence and complete the record.
{¶ 6} The parties appeared for the evidentiary hearing but, in lieu of presenting testimony, they voluntarily entered into three stipulations. Because the parties did not wish to present any additional evidence, the court's review of the planning commission's decision was confined to the record as submitted by the parties.
The parties agreed to admit into evidence a letter dated January 7, 2008 from Paul Powers to Mary Galinas. The parties also stipulated that Global's application complied with the city of Parma's zoning requirements and that the testimony of Paul Powers on October 24, 2007 should be considered by the court as if it were sworn testimony.
{¶ 7} Upon review of that record, the common pleas court found that the record was incomplete and ambiguous as to the reasons for the planning commission's decision. The court noted that several issues about the site plan had been raised and discussed at planning commission meetings but were never resolved. For example, the court found that although commission members had discussed the appearance of the building, it was unclear whether Global was required to use brick and, therefore, not clear if Global's failure to propose a brick building was a basis for the planning commission's denial of Global's request. Likewise, issues regarding what taxes Global would pay, the required number of parking spaces, and whether Global's building would negatively impact Parma's sewer system were raised and discussed, but not resolved. The court found that because the record was incomplete, it could not "determine which, if any, of the [planning commission's] concerns constituted a basis for denying appellant's request" and "to the extent that some of [the commission's] concerns may have been a basis for denying [Global's] request, the record does not support [the planning commission's] decision by a preponderance of substantial, reliable, and probative evidence."
{¶ 8} But the court also found that Global had not "pointed to a preponderance of substantial, reliable, and probative evidence in the record to show that its request must be approved." The court found that although the parties had stipulated that Global's application satisfied the City's zoning requirements, the record was clear that there were still unresolved issues relating to the application. Those issues included, in addition to the previously mentioned issues, building, utility, grading, and drainage plans; an interior floor plan; and driveway accessibility for emergency vehicles. The court found that "[w]ithout any substantial, reliable, and probative evidence in the record that shows that [Global] has complied with [the planning commission's] requirements for these aspects of the final site plan, the court cannot require [the commission] to approve the plan."
{¶ 9} In short, the court found that even though it had provided the parties with an opportunity present evidence at an evidentiary hearing, the parties had failed to produce sufficient evidence for the court to render a decision regarding Global's application for final approval. Accordingly, the court found that it was constrained to vacate the planning commission's decision and remand the matter to the administrative agency for further proceedings not inconsistent with its opinion.
{¶ 10} Global appeals from this judgment.
II. Law and Analysis
{¶ 11} The standard of review to be applied by common pleas courts and courts of appeals in R.C. Chapter 2506 administrative appeals is unique. The common pleas court considers the whole record, including any new or additional evidence admitted under R.C. 2506.03, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. R.C. 2506.04. "Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court." Id. {¶ 12} An appeal to the court of appeals is more limited in scope. We review on questions of law and must affirm the common pleas court unless we find that the decision of the common pleas court is not supported by a preponderance of reliable, probative, and substantial evidence. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848. Whether the common pleas court abused its discretion is within the ambit of "questions of law" in R.C. 2506.04 administrative appeals. Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 148, 2000-Ohio-493, 735 N.E.2d 433.
Common pleas courts are authorized under R.C. 2506.04 to reverse an administrative decision and remand the cause to the administrative body to conduct further proceedings on the matter. State ex rel. Village of Chagrin Falls v. Geauga Cty. Bd. of Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, 775 N.E.2d 512, ¶ 12. "`Once a court remands to the administrative agency, the agency's jurisdiction over the matter is revived. That being so, the agency may conduct further proceedings and render a new decision.'" Id., ¶ 11, quoting Neary v. Moraine Bd. of Zoning Appeals (July 30, 1999), 2d Dist. No. 17428.
{¶ 13} In its single assignment of error, Global contends that the trial court erred by not ordering that its final site plan was deemed approved. Global argues that the trial court properly found that the planning commission's decision denying its application was not supported by the preponderance of the evidence, but contends that because the parties stipulated that Global's site plan complied with the city of Parma's zoning requirements, the trial court should have ordered its final site plan approved.
{¶ 14} But Global's argument ignores the many other unresolved issues surrounding its proposed site plan, including (1) whether Global must use brick in its structure; (2) whether Global will pay property taxes; (3) whether the final site plan includes the required number of parking spaces; (4) what effect Global's building will have on the City's sewer system; (5) elevations of the building, utility, grading, and drainage plans; (6) an elevation and interior floor plan; (7) a detailed elevation of the fencing; and (8) driveway accessibility for emergency vehicles. Because there was not substantial, reliable, and probative evidence in the record that Global had complied with the City's requirements for these aspects of the site plan, the common pleas court properly held that it could not require the planning commission to approve the plan.
{¶ 15} This case is similar to In re Rocky Point Plaza Corp. (1993), 86 Ohio App.3d 486, 621 N.E.2d 566, in which Rocky Point Plaza Corporation appealed from the common pleas court's judgment that affirmed the decision of the board of zoning appeals denying Rocky Point's application for a zoning permit. The Tenth District found that the administrative body had not filed conclusions of fact supporting its decision under R.C. 2506.03 with the common pleas court. It also found, however, that "on the other hand, Rocky Point made no effort to have appropriate evidence adduced before the common pleas court * * *." The court stated that "[t]he upshot of the matter is that not only is there no reliable, probative and substantial evidence supporting a denial of the permit, there is no substantial, reliable and probative evidence supporting a granting of the conditional use permit." Therefore, the court held that the common pleas court should have reversed the decision of the board of zoning appeals and remanded the matter for a new hearing and determination.
{¶ 16} We have the same situation here. The record before the common pleas court was incomplete and ambiguous, but the planning commission did not offer conclusions of fact into evidence and Global did not offer supplemental testimony in support of its case. Thus, the record lacked a preponderance of substantial, reliable, and probative evidence for either party. Because the parties failed to produce sufficient evidence for the common pleas court to render a decision regarding Global's application for final approval, the court properly vacated the planning commission's decision and remanded the matter to the administrative agency for further proceedings.
Affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, J., CONCUR.
ico addressed whether an implied contract existed.
See
119 N.M. at 575,
893 P.2d at 471. The defendant argued that an implied contract could not exist, because its handbook disclaimed any contractual relationship and stated that em
Kiedrowski v. Citizens Bank,
119 N.M. at 575,
893 P.2d at 471. The Court of Appeals of New Mexico noted that a disclaimer does not automatically negate a document's contractual status, and must be read in reference to the parties' norms of conduct and the expectations that are founded on the norms of conduct.
See Kiedrowski v. Citizens Bank,
119 N.M. at 575,
893 P.2d at 471. The Court of Appeals of New Mexico found that the defendant's
handbook contains detailed disciplinary procedures which Bank managers must follow when disciplining employees. Depending on the severity of an employee's performance problem, the handbook requires managers to respond with progressive discipline, in a gradually escalating fashion, first with an oral warning, then a written warning, written probation, suspension, and finally, termination. Plaintiff stated in her affidavit, based on her own management experience, that the Bank instructed their managers to follow the disciplinary procedures outlined in the handbook. Plaintiff herself, followed those same procedures when disciplining other employees, and the Bank applied those same procedures to Plaintiff in terms of a gradually escalating response to its alleged problems with her. Therefore, Plaintiff can reasonably maintain that she relied on more than just a custom or vague inferences of not terminating employees at will. The Bank's systematic application of its termination policies could reasonably create an expectation in Plaintiff that the same would be done in her case. There is at least a genuine issue of material fact, for resolution by the jury, as to whether the Bank's handbook, combined with the Bank's actual practices and representations, created an expectation of "an implied-in-fact contract term limiting the employer's right to terminate at will."
Kiedrowski v. Citizens Bank 119 N.M. at 576, 893 P.3d at 472 (citation omitted). Similarly, in this case, despite the disclaimers in the Associate Handbook, which state that the handbook did not create an implied contract and that employment with Vanguard was at will, the specific language in the handbook, stating that Vanguard may bypass its progressive discipline policy in some situations because of the serious nature of the offense, is evidence that Vanguard used progressive
discipline before terminating an employee, except in situations involving serious offenses. There is also evidence that the practice of Vanguard's general managers was to use progressive discipline, except when employees committed serious offenses. This evidence creates a genuine issue of material fact whether the language in the Associate Handbook, combined with Vanguard's employment practices, created a reasonable expectation that Vanguard would follow its progressive discipline policies, except in situations involving serious offenses such as theft. There is also a genuine issue of material fact whether Clayton's signature on the letter was a serious offense warranting immediate termination without progressive discipline. Although Murphy felt that Clayton's signature on the letter was a terminable offense, there is evidence that Villegas and Jared believed the offenses for which progressive discipline could be bypassed were offenses such as theft or employee violence. Because a factfinder could conclude that Clayton's signature on the letter was not as serious an offense as theft, there is a genuine issue of material fact whether her offense warranted immediate termination. Because there is a genuine issue of fact whether Clayton had a reasonable expectation that Vanguard would use progressive discipline, except in situations involving serious offenses, and whether Clayton's offense was sufficiently serious to warrant
termination without progressive discipline, the Court will deny Vanguard's request that it grant summary judgment on Clayton's claim for breach of implied contract regarding progressive discipline.
Vanguard also moves for summary judgment on Clayton's claim for breach of implied contract based on Vanguard's policy which stated that it would not tolerate discrimination or harassment, and would investigate any complaints of discrimination or harassment. See Motion at 41. Although Clayton appears to have agreed to stipulate that her breach-of-implied contract claim is limited to progressive discipline, Clayton did not mention whether she had agreed to withdraw her good-faith-and-fair-dealing claim regarding Vanguard's anti-discrimination and investigation policies. Because the Court must decide whether there is an implied contract to decide whether there is an implied covenant of good faith and fair dealing, the Court will decide whether there is an implied contract based on Vanguard's anti-discrimination and investigation policies. The Court believes that there is not a genuine issue of material fact regarding Clayton's claim. Vanguard's non-discrimination policy states:
Discrimination and harassment will not be tolerated. . . . Vanguard encourages and expects reporting of all instances of harassment or discrimination. . . . Retaliation against anyone who, in good faith, reports discrimination is strictly prohibited and will result in discipline up to an including termination. . . . or harassment and to take any necessary corrective action, up to and including termination.
Policy No. 1 — Non-Discrimination at 1, filed October 25, 2010 (Doc. 142-10). This policy prohibits harassment and discrimination on the basis of race, national origin, gender, age, and disability. See Policy No. 1 — Non-Discrimination at 1-4. Another policy states: "Each report of a known or suspected violation [of Vanguard's policies] will be promptly and thoroughly investigated. In all cases, the Corporate Compliance Committee . . . should carefully document all actions taken and decisions reached. A report should be prepared even if the investigation reveals that no violation occurred." Policy No. 29 — Reporting and Investigating Violations and Seeking Clarification of Policies, filed October 25, 2010 (Doc. 142-10).
New Mexico courts have recognized implied contracts outside the context of limiting at-will employment. See Beggs v. City of Portales, 146 N.M. at 373, 376-77, 210 P.2d at 799, 802-03 (finding a genuine issue of material fact whether an implied contract existed from a personnel policy provision that required the city to offer its retiring employees the option of continuing their health care coverage under the city's group plan, when the manual "exhaustively addressed `all phases of Personnel Administration,'" covered every aspect of the employment relationship, and contained language that the city "shall offer" its retiring employees health insurance benefits). The Court nonetheless does not believe that Vanguard's anti-discrimination policy creates an implied contract. The Court has not found a New Mexico case addressing whether an anti-discrimination policy creates an implied contract. New Mexico courts state, however, that an implied contract is created when a personnel manual creates a reasonable expectation that an employer will follow specified procedures, and that the "reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon." Hartbarger v. Frank Paxton Co., 115 N.M. at 672, 857 P.2d at 783. See Sanchez v. New Mexican, 106 N.M. at 78, 738 P.2d at 1324 ("[T]he evidence supports the Employer's contention that the handbook lacked specific contractual terms which might evidence the intent to form a contract. The language is of a non-promissory nature and merely a declaration of defendant's general approach to the subject matter discussed."). The Court has found an analogous case from the Court of Appeals of New Mexico that used these general principles to reach its decision. InRuegsegger v. Western New Mexico University Board of Regents, 141 N.M. 306, 154 P.3d 681 (Ct. App. 2006), the Court of Appeals of New Mexico addressed whether a student handbook, in which one provision was a sexual harassment policy that set forth the University's commitment to a environment free of sexual discrimination, created an implied contract. See 141 N.M. at 312-313, 154 P.3d at 687-88. The Court of Appeals found that the handbook's provisions provided guidelines and not a guarantee to specific rights. See 141 N.M. at 313, 154 P.3d at 688.
These principles find support in contract law. In general, consideration necessary to form a contract "requires a bargained-for benefit or detriment[;] [w]here an illusory promise is made, that is, a promise merely in form, but in actuality not promising anything, it cannot serve as consideration." 3 Williston on Contracts § 7:7 (4th ed.). See Piano v. Premier Distributing Co., 137 N.M. 57, 60, 107 P.3d 11, 14 (Ct. App. 2004) ("A promise may be consideration for a promise if it is `lawful, definite and possible.' However, a promise that `puts no constraints on what a party may do in the future — in other words, when a promise, in reality, promises nothing — it is illusory and is not consideration." (internal citations omitted)).
Review of these Handbook provisions indicates that, instead of contractually guaranteeing a right to specific types of investigation, support, and sanctions in the event of a sexual assault, they provide guidelines for the operation of WNMU. Therefore, they do not constitute the terms of an implied contract and do not contractually guarantee the rights asserted by Plaintiff.
See Sanchez v. The New Mexican,
106 N.M. 76, 79,
738 P.2d 1321, 1324 (1987) (affirming the dismissal of an implied contract claim on grounds that "the handbook lacked specific contractual terms which might evidence the intent to form a contract . . . [insofar as the] language is of a non-promissory nature and merely a declaration of defendant's general approach");
Stieber v. Journal Publ'g Co.,
120 N.M. 270, 274,
901 P.2d 201, 205 (Ct. App. 1995) (holding that general policy statements in a handbook are "insufficient to create an implied contract" because they are merely declarations of a general approach to the subject matter);
see also Goodman v. President Trustees of Bowdoin Coll.,
135 F. Supp. 2d 40, 56 (D. Me. 2001) (holding that handbook language that "`[d]iscrimination . . . has no place in an intellectual community . . . [and] [s]uch practices violate both the ideals of the College and its Social Code and are subject to appropriate disciplinary sanctions'" does not indicate a contractual obligation by the college to refrain from discrimination). Even though the Student Handbook sets out a general framework of policies, we are not persuaded that the language contractually obligates WNMU to conduct any specific type of investigation, to provide support services, or to impose specific discipline.
141 N.M. at 313, 154 P.3d at 688. Similarly, Vanguard's policy, which states that discrimination and harassment will not be tolerated, is a general guideline, and the policy does not contain language specific enough to raise a reasonable expectation that Vanguard is guaranteeing a right to be free from discrimination.
The Tenth Circuit has explained:
In cases arising under diversity jurisdiction, the federal court's task is not to reach its own judgment regarding the substance of the common law, but simply to ascertain and apply the state law. . . . The federal court must follow the most recent decisions of the state's highest court. . . . Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do. . . . In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state, . . . appellate decisions in other states with similar legal principles, . . . district court decisions interpreting the law of the state in question, . . . and the general weight and trend of authority in the relevant area of law. . . . Ultimately, however, the Court's task is to predict what the state supreme court would do.
Wade v. Emcasco Ins. Co.,
483 F.3d 657, 665-66 (10th Cir. 2007) (citations and internal quotation marks omitted). The Court believes that the Supreme Court of New Mexico would follow the Court of Appeal's decision in
Ruegsegger v. W. N.M. Univ. Bd. of Regents, because it is an established principle in New Mexico law that the terms of the personnel manual must be "sufficiently explicit to create a reasonable expectation of an implied contract,"
Trujillo v. N. Rio Arriba Elec. Co-op, Inc.,
131 N.M. 607, 615-616, 41 P.3d 333, 342-43 (2001), and because the Court of Appeals relied on the language in an opinion from the Supreme Court of New Mexico,
Sanchez v. New Mexican, in reaching its holding.
The Court has found several cases that have found that the language of an employer's anti-discrimination policy that solely contains a general statement of adherence to anti-discrimination laws does not create an implied contract. In Peralta v. Cendant Corp., 123 F. Supp. 2d 65 (D. Conn. 2000), the United States District Court for the District of Connecticut stated:
The language of the anti-harassment policy that plaintiff urges as the basis of his implied contract claim does not indicate that defendant is undertaking any contractual obligations towards the plaintiff; rather, it obliges Cendant to comply with federal and state anti-discrimination laws, and to undertake an investigation upon receiving complaints of discrimination and/or harassment. Cendant is required to publicize its equal opportunity and anti-harassment policy, as well as the complaint procedure, in order to guard against liability under the discrimination laws.
See Faragher v. City of Boca Raton,
524 U.S. 775, 807 . . . (1998). As any promises in the policy are general statements of adherence to the anti-discrimination laws, standing alone they do not create a separate and independent contractual obligation.
See Gally v. Columbia Univ.,
22 F. Supp. 2d 199, 208 (S.D.N.Y. 1998) (anti-discrimination policy does not give rise to contractual liability);
Belgrave v. City of New York,
1999 WL 692034 (E.D.N.Y.) (no breach of contract claim where employee claimed that employer failed to follow its procedures for providing equal opportunity to employees).
The Court also notes that federal policy would not be served by allowing contractual recovery under such policies and procedures, as employers might thus be chary of publicizing and enforcing their complaint procedures.
See Malik[
v. Carrier Corp.], 202 F.3d [97, 106 (2d Cir. 2000)] ("The issue here is not the proper balance between employee rights and employer authority under state law. The issue
is how to ensure that federal policies are not undermined by imposing on employers legal duties enforceable by damages that reduce their incentives to take reasonable corrective
action as required by federal law.")[.]
123 F. Supp. 2d at 83-84 (citation to the record omitted). Similarly, the United States District Court for the District of South Dakota granted summary judgment on a breach-of-contract claim seeking to enforce the anti-discrimination provisions in the employer's employee handbook, because the employer already must abide by Title VII and a promise to perform a legal duty is not consideration for a return promise.
See Mutua v. Tex. Roadhouse Mgmt. Corp., Civ. No. 09-4080,
2010 WL 4683859, at *14-15 (D.S.D. Nov. 10, 2010) (citation omitted);
Byra-Grzegorczyk v. Bristol-Myers Squibb Co.,
572 F. Supp. 2d 233, 254 (D. Conn. 2008) (recognizing that an "anti-discrimination policy" does not indicate that an employer is undertaking any contractual obligations towards the employee; rather, it requires the employer "to comply with federal and state anti-discrimination laws");
Gally v. Columbia Univ.,
22 F. Supp. 2d at 208 (stating that a provision in the code of conduct requiring that all students receive fair and equal treatment is "merely a general statement of adherence by [the defendant] to existing anti-discrimination laws[;] [i]t does not create a separate and independent contractual obligation") (citation omitted). The Court has found no case that has found an implied contract based solely on an anti-discrimination policy and the parties have not cited such a case. The Court believes that the Supreme Court of New Mexico would not vary from this body of law, because the Supreme Court has recognized that "an agreement to do what one is already legally bound to do is not sufficient consideration for the promise to another,"
W. Bank of Santa Fe v. Biava,
109 N.M. 550, 551, 787 P.2d 830, 831 (1990). In any case, these cases that the Court has found support the Court's conclusion that the policy's language that Vanguard will not tolerate harassment or discrimination on the basis of race, national origin, gender, age, and disability would not create an implied contract.
Vanguard's policy is broader than a statement of anti-discrimination; it also says that Vanguard will investigate complaints of discrimination. Nevertheless, the Court believes that the statements in Vanguard's policies regarding investigation of complaints of discrimination set forth general guidelines for the investigation process, but do not contractually guarantee employees a right to investigation of a discrimination complaint. In Ruegsegger v. W. N.M. Univ. Bd. of Regents, the Court of Appeals of New Mexico considered whether the language of the University's student handbook contractually obligated the University to conduct a specific type of investigation, to provide support services, or impose specific discipline. See 141 N.M. at 313, 154 P.3d at 688. The student handbook contained several portions that the plaintiff argued gave rise to an implied contract.
The Student Handbook . . . contains a section on the Student Appeals Committee, which pertains to appeals from various committees including the disciplinary committee. This section confers upon students the right to be present, bring witnesses, be accompanied by an attorney, and have no one but committee members present. The section provides that "[t]he student" will be given verbal notification of the committee's decision and written notification will follow "in a timely manner." This section does not clarify whether the phrase "[t]he student" refers to the student being disciplined, the complaining student, or both.
The Handbook's "sexual harassment policy statement" consists of a general statement of WNMU's commitment to maintaining an environment free of sexual
discrimination and "objectionable and disrespectful conduct and communication of a sexual nature." Students who feel they have been harassed are encouraged to contact the Director of Affirmative Action/EEO. Students are also encouraged to report "[c]onduct of a sexual nature" to "their immediate supervisor, and/or appropriate vice president, and/or Affirmative Action."
The handbook also contains a section titled "RESPONSE TO AN ALLEGED SEXUAL ASSAULT" which states that "[t]he University has established the following Crisis Intervention Team to respond to any emergencies concerning sexual assaults." It then states that the "Crisis Team is as follows" and lists (along with phone numbers) campus police, Vice President of Student Affairs, Vice President of Counseling, and Vice President of Housing. This section recommends that at least two team members respond to any emergency and that the team should include male and female members when possible.
141 N.M. at 312, 154 P.3d at 687. The Court of Appeals found that these provisions in the handbook indicated that, "instead of contractually guaranteeing a right to specific types of investigation, support, and sanctions in the event of a sexual assault, they provide guidelines for the operation of [the University][;] [t]herefore, they do not constitute the terms of an implied contract and do not contractually guarantee the rights asserted by [p]laintiff."
141 N.M. at 313, 154 P.3d at 688. Similarly, the Court believes that the language regarding investigations in Vanguard's Associate Handbook contains mere declarations of Vanguard's approach to investigations, and are not sufficiently specific to create an implied contract. Indeed, Vangaurd's policy is much less specific than the handbook in
West v. Wash. Tru Solutions, LLC.
See West v. Wash. Tru Solutions, LLC,
147 N.M. at 429, 224 P.2d at 656 (finding issue of fact whether implied contract existed when a handbook contained language indicating "that managers and employees `must' or were `expected to' use the outlines procedures"). Vanguard's anti-discrimination policy states that it is Vanguard's policy to investigate complaints of discrimination or harassment. This language is a general statement or a guideline regarding how complaints of discrimination will be handled. This anti-discrimination policy states that it is Vanguard's policy to investigate any complaints of discrimination.
It does not say Vanguard will investigate all complaints, and the phrasing does not contain mandatory language, such as, Vanguard must investigate all complaints of discrimination. This statement also does not contain any specific procedures for the investigation of complaints of discrimination. Although federal anti-discrimination laws and New Mexico anti-discrimination laws do not require an employer to conduct investigations into allegations of discrimination, the Court
believes that Vanguard's statement that its policy is to investigate complaints of discrimination merely reinforces its wish to adhere to federal and state anti-discrimination laws.
See Peralta v. Cendant Corp.,
123 F. Supp. 2d at 83-84 ("[T]he anti-harassment policy . . . obliges [the defendant] to comply with federal and state anti-discrimination laws, and to undertake an investigation upon receiving complaints of discrimination and/or harassment
. . . . As any promises in the policy are general statements of adherence to the anti-discrimination laws . . . they do not create a separate . . . contractual obligation.").
In the following paragraph, the Court will discuss Vanguard's statement that it will investigate reports of violations of its policies, which is contained in its policy regarding investigation of complaints.
Another policy states that Vanguard will promptly investigate reports of violations of its policies, and that in all cases, the actions taken to investigate should be documented, and a reportshould be prepared. This language that Vanguard will promptly investigate, and should document that investigation, is similar to the language in Ruegsegger v. W. N.M. Univ. Bd. of Regents, which stated that students are encouraged to report sexual harassment and that the emergency response team should include male and female managers; the Court of Appeals found that the language in the student handbook was not specific enough to create a reasonable expectation that the University would be obligated to provide her a more comprehensive investigation and more support after her assault. See 141 N.M. at 312, 154 P.3d at 387. See also Sanchez v. New Mexican, 106 N.M. at 78, 738 P.2d at 1324 ("[T]he evidence supports the Employer's contention that the handbook lacked specific contractual terms which might evidence the intent to form a contract. The language is of a non-promissory nature and merely a declaration of defendant's general approach to the subject matter discussed."); Romero v. Earl, 111 N.M. 789, 791, 810 P.2d 808, 810 (1991) ("Consideration adequate to support a promise is essential to enforcement of the contract. . . ."); Guest v. Allstate Ins. Co., 145 N.M. 797, 805, 205 P.3d 844, 852 (Ct. App. 2009) ("Where a contract leaves it entirely optional for one of the parties to perform, the contract is not founded on mutual promises and is, [without performance], not binding or enforceable." (citation omitted)). The Court believes that this language sets forth general guidelines of how Vanguard will conduct investigations. The policy states that Vanguard will not overlook complaints. The policy does not set forth a contractual obligation that Vanguard would investigate every complaint of discrimination, because it does not state that managers must investigate every complaint, and does not set forth detailed and mandatory procedures for how the complaints should be investigated. The Court therefore does not believe that the language is sufficiently specific, explicit, or mandatory to create a reasonable expectation that Vanguard contractually obligated itself to conduct an investigation into discrimination complaints. See Hartbarger v. Frank Paxton Co., 115 N.M. at 672, 857 P.2d at 783 ("The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon."). The Court does not believe that the language in Vanguard's policies regarding investigations is sufficiently specific to create a reasonable expectation that it would conduct an investigation of a discrimination complaint or that Vanguard's anti-discrimination policy would create an implied contract. Because the Court had to determine whether an implied contract based on Vanguard's anti-discrimination and investigation policies existed to decide Clayton's good-faith-and-fair-dealing claim regarding Vanguard's anti-discrimination and investigation policies, and because Clayton has not yet taken action to withdraw her claim for breach of implied contract regarding Vanguard's anti-discrimination and investigation policies, the Court will grant summary judgment on Clayton's breach of implied contract claim regarding Vanguard's anti-discrimination and investigation policies.
VIII. THE COURT WILL NOT GRANT SUMMARY JUDGMENT ON CLAYTON'S CLAIM FOR GOOD FAITH AND FAIR DEALING REGARDING PROGRESSIVE DISCIPLINE, BUT WILL GRANT SUMMARY JUDGMENT ON CLAYTON'S CLAIM FOR GOOD FAITH AND FAIR DEALING BASED ON VANGUARD'S ANTI-DISCRIMINATION AND INVESTIGATION POLICIES .
Vanguard contends that Clayton's claims under the implied covenant of good faith and fair dealing cannot withstand summary judgment, because she was an at-will employee. See Motion at 44. Vanguard further contends that, even assuming that the implied covenant of good faith and fair dealing applies, Vanguard did not breach the covenant. See Motion at 45. Clayton did not respond to Vanguard's argument regarding her claim for good faith and fair dealing in her Response. Because Clayton failed to respond to Vanguard's arguments, the Court will grant summary judgment on Clayton's claim if the facts and law support the entry of summary judgment. Cf. Donnell v. City of Cedar Rapids, 437 F. Supp. 2d at 928 n. 11 ("Plaintiff does not respond to the [defendant's] argument. Where the nonmoving party fails to respond to a motion for summary judgment, `summary judgment, if appropriate shall be entered. . . ." (citing Fed.R.Civ.P. 56(c))).
"Whether express or not, every contract imposes upon the parties a duty of good faith and fair dealing in its performance and enforcement." Watson Truck Supply Co. v. Males, 111 N.M. at 60, 801 P.2d at 642 (citations omitted). This rule means that, before the implied covenant of good faith and fair dealing can exist, a contract must exist. The Court has found that there is a genuine issue of material fact whether an implied contract that Vanguard would follow progressive discipline, except in situations involving serious offenses, existed. In her Amended Complaint, Clayton alleges that Vanguard failed in its duty of good faith and fair dealing, because of its failure to comply with its "policies and procedures regarding progressive discipline. . . ." Amended Complaint ¶ 78, at 11. "Broadly stated, the covenant [of good faith and fair dealing] requires that neither party do anything which will deprive the other of the benefits of the agreement." Watson Truck Supply Co. v. Males, 111 N.M. at 60, 801 P.2d at 642 (internal quotation marks omitted). "Denying a party its rights to [the benefits of the agreement] will breach the duty of good faith implicit in the contract." Sanders v. FedEx Ground Package Sys., Inc., 144 N.M. 449, 452, 188 P.3d 1200, 1203 (2008) (citation omitted). The covenant protects only against intentional affronts to a party's rights, or affronts that the breaching party is consciously aware of. See Paiz v. State Farm Fire and Cas. Co., 118 N.M. 203, 213, 880 P.2d 300, 310 (1994). A party can deny another party its rights to the benefits of the agreement in several ways, including interference with or failure to cooperate in the other party's performance.See Sanders v. FedEx Ground Package Sys., Inc., 144 N.M. at 452, 188 P.3d at 1203. Although there is no evidence that Vanguard interfered with Clayton's performance of the agreement or failed to cooperate with her performance, there is evidence that Vanguard denied her the benefits of an agreement regarding progressive discipline. The evidence in the record demonstrates a genuine issue of material fact whether Vanguard deprived Clayton of the benefits of any agreement that it would follow progressive discipline, except for serious offenses. As the Court discussed previously, there is a genuine issue of material fact whether Clayton's signature on a letter was an offense that warranted termination without progressive discipline. Although Murphy regarded Clayton's signature as a terminable offense, there is evidence that general managers used progressive discipline, except in situations involving offenses such as theft or employee violence. A factfinder could find that Clayton's signature on a letter is not comparable to offenses such as theft; therefore, Vanguard should have used progressive discipline before terminating Clayton's employment. Because there is a genuine issue of material fact whether Vanguard deprived Clayton of the benefits of an implied contract regarding progressive discipline, the Court will deny Vanguard's request that it grant summary judgment on Clayton's implied-covenant-of-good-faith-and-fair-dealing claim based on Vanguard's failure to follow its progressive
discipline policies.
Although the Court may not need to decide this issue if Clayton intends to withdraw the claim, she has not explicitly confirmed that she will do so any has not done so yet. In any case, the Court believes that Clayton's implied-covenant-of-good-faith-and-fair-dealing claim regarding Vanguard's failure to follow its anti-discrimination and investigation policies should not survive summary judgment, and so close to trial, Vanguard deserves a ruling. In her Amended Complaint, Clayton alleges that Vanguard failed in its duty of good faith and fair dealing because of its failure to comply with its "policies and procedures . . ., specifically harassment and hostile work environment policies." Amended Complaint ¶ 78, at 11. The Court of Appeals of New Mexico has stated that "an implied contract . . . only cover[s] those matters for which there were representations sufficiently specific for a reasonable employee to rely upon." West v. Wash. Tru Solutions, LLC, 147 N.M. at 432, 224 P.3d at 659. Although the Court has found that there is a genuine issue of material fact whether there was an implied contract that Vanguard would follow progressive discipline policies, except in cases of serious offenses, that implied contract is limited to progressive discipline matters. As the Court has stated, it does not believe that Vanguard's non-discrimination and investigation policies create an implied contract. There would be no contract on which to impose on Vanguard a duty to act in good faith.
IT IS ORDERED that the Court will grant in part and deny in part Defendant Vanguard Car Rental U.S.A. Inc.'s Motion for Summary Judgment, filed October 8, 2010 (Doc. 134). The Court denies Defendant Vanguard Car Rental U.S.A. Inc.'s request that it grant summary judgment on Plaintiff Christine Clayton's gender discrimination claim under Title VII and the NMHRA, her age discrimination claim under the ADEA and the NMHRA, her implied-contract claim regarding progressive discipline, and her implied-covenant-of-good-faith-and-fair-dealing claim regarding progressive discipline. The Court grants Vanguard's request that it grant summary judgment on Clayton's EPA claim, on Clayton's implied contract claim regarding Vangaurd's anti-discrimination and investigation policies, and Clayton's implied-covenant-of-good-faith-and-fair-dealing claim regarding Vanguard's anti-discrimination and investigation policies.