Howard v. WOLFE BROADCASTING CORP.

Citations: 611 So. 2d 307; 1992 WL 341847Docket: 1910603

Court: Supreme Court of Alabama; November 24, 1992; Alabama; State Supreme Court

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Patricia Williams Howard was terminated from her position at Wolff Broadcasting Corporation, allegedly due to her gender, as indicated by the station's manager, Keith Holcombe, who cited that Karen Wolff, the owner's wife, did not want females on the air. Howard had no prior radio experience and was hired after seeing a non-discrimination sign at the station. She filed a complaint against Wolff for fraud and breach of contract, and against Karen Wolff for intentional interference with business relations. Wolff subsequently moved for summary judgment, asserting that Howard had not proven entitlement to relief. The trial court ruled in favor of Wolff, declaring that there were no genuine issues of material fact and that Wolff was entitled to judgment as a matter of law. Howard appealed this summary judgment, challenging the trial court's decision based on the standards outlined in Rule 56, A.R.Civ.P., which emphasizes that the burden is initially on the moving party to demonstrate the absence of material fact issues before the opposing party must respond. The appellate review will assess whether there were genuine issues of material fact and if Wolff was entitled to judgment.

The Court's review process requires evaluating the record favorably for the nonmovant, resolving doubts against the movant, as established in Alabama case law. The nonmovant must present "substantial evidence," defined as evidence that allows reasonable inferences by fair-minded individuals. Regarding the breach of contract claim, the key consideration is whether Howard's employment contract was terminable at will, meaning either party could terminate it at any time without cause. Although Alabama law permits such terminations, Howard claims her employment was not terminable at will due to an implied covenant against discrimination, which she argues should be recognized in her contract based on federal regulations governing equal employment opportunities. Howard references the Hoffman-La Roche case, which outlines three conditions that, if met, would negate the at-will employment status: a clear offer of lifetime or definite duration employment, authority of the hiring agent to create such a contract, and substantial consideration provided by the employee beyond their services.

Each broadcast station is required to implement an ongoing Equal Employment Opportunity (EEO) program that encompasses specific practices aimed at promoting equitable employment policies. Key responsibilities include:

1. Defining management's roles in applying and enforcing the equal opportunity policy, alongside mechanisms for reviewing managerial performance.
2. Informing employees and recognized organizations about the EEO policy and seeking their collaboration.
3. Communicating the EEO policy and employment needs to diverse applicant sources, actively seeking recruitment assistance without discrimination.
4. Establishing a program to eliminate unlawful discrimination based on race, color, religion, national origin, or sex from employment practices and workplace conditions.

The EEO program must be communicated to job applicants and employees, for instance, through posted notices that inform them of their equal opportunity rights. The legal precedent set in *Hoffman-La Roche* establishes that employment policies in written form, such as those in employee handbooks, can create a binding unilateral contract if certain conditions are met: the handbook language must be sufficiently specific, the offer must be communicated, and the employee must accept the offer by continuing employment after becoming aware of it, with their performance serving as consideration.

In Alabama, employment is generally "at-will," allowing either party to terminate it without cause unless a specific contract for a defined term exists. Employees must provide substantial proof to establish an employment relationship that deviates from the "at-will" doctrine. The provisions of 47 C.F.R. 73.2080 do not alter the at-will nature of Howard's employment with Wolff, as they cannot transform an at-will relationship into a permanent one based on the precedent established in *Hoffman-La Roche*.

Howard contends that the summary judgment regarding her fraud claim was improper. She alleged that Wolff, through a posted sign in the station lobby, explicitly assured her during her hiring that she would not face sex discrimination. Howard claimed this representation was false and known to be false by Wolff at the time it was made. However, she failed to provide substantial evidence that Wolff misrepresented any material existing facts, reducing her claim to promissory fraud—asserting that Wolff's representation about future conduct was false.

To establish a promissory fraud claim, Howard must prove: 1) a false representation of a material fact by the defendant; 2) reliance on that representation by the plaintiff; 3) damages resulting from that reliance; 4) intent to deceive at the time of the representation; and 5) an intention not to perform the representation when made. Precedent cases underline that mere failure to perform does not equate to fraud unless there is evidence of a present intent to deceive at the time of the promise.

Howard did not provide substantial evidence that Wolff intended to deceive her or had no intention of fulfilling the alleged promise when it was made. She admitted that no one from Wolff discussed any equal employment policies or discrimination with her. Although she argued that the sign indicating the station's equal opportunity employer status was a false representation, she did not inquire about the sign or related policies. Consequently, the court upheld the summary judgment in favor of Wolff on the promissory fraud claim.

Additionally, Howard suggested a public policy exception to the "at-will" employment doctrine, which was established in Alabama in Howard v. East Tennessee, V. G. Ry., 91 Ala. 268, 8 So. 868 (1891), but did not provide sufficient grounds for this exception in her case.

The employment "at-will" doctrine allows either an employer or employee to terminate an employment contract at any time, with or without cause, as established in Grant v. Butler, 590 So.2d 254 (Ala.1991). Howard contends this doctrine should be modified or abolished by the judiciary, yet the court has consistently refrained from creating a public policy exception to it, as seen in multiple cases including Salter v. Alfa Insurance Co., 561 So.2d 1050 (Ala.1990), and Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). The court has rejected the establishment of wrongful discharge claims based on public policy for three main reasons: it would undermine the contract rights of employers and employees, it would conflict with established employment law, and the vagueness of "contrary to public policy" does not justify creating a new tort. Howard suggests a narrow public policy exception based on non-discrimination principles, referencing trends in other states. Despite acknowledging the court's historical refusal to adopt such exceptions, she argues that the national trend supports her position. The court, however, maintains that addressing this matter falls within the legislative domain, particularly in cases like Howard's, where she claims discrimination. The court emphasizes that its refusal to create a public policy exception should not be interpreted as approval of discrimination based on gender, but asserts that it is up to the legislature to enact such an exception if deemed necessary.

The legislature has the authority to establish a cause of action in specific situations, as demonstrated by its enactment of Ala.Code 1975, 25-5-11.1 and 12-16-8.1, which effectively overruled the precedents set in Meeks v. Opp Cotton Mills and Bender Ship Repair, Inc. v. Stevens by providing remedies for certain scenarios. This indicates the legislature's responsiveness to potential injustices arising from the strict application of the employment "at-will" doctrine. Consequently, the court declines to alter the employee-at-will doctrine by introducing a public policy exception, choosing instead to respect the legislature's judgment. The trial court's judgment is affirmed. Additionally, it is noted that Howard's termination by Wolff, who had only seven employees, fell outside the jurisdiction of the Equal Employment Opportunity Commission. Thus, Howard lacked a federal cause of action under 42 U.S.C. 2000e (2), 1972, and had previously entered into a settlement agreement regarding her claim against Wolff for interference with a business relation on October 9, 1991.