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Kane v. Decision Servcom Inc.

January 21, 1997

MARK A. KANE, APPELLANT,
v.
DECISION SERVCOM, INC., FORMERLY DECISION DATA SERVICE, INC., A FOREIGN CORPORATION, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 94-2-02007-2. Date filed: 07/25/95. Judge signing: Hon. Peter Jarvis.

Authored by H. Joseph Coleman. Concurring: William W. Baker, Mary K. Becker.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Mark Kane was fired from Decision Data Services, Inc. (DDSI) when he was unable to explain charges of misconduct. Although Kane signed agreements stating that he was an at-will employee, he argues that he justifiably relied on oral and written promises that DDSI would follow procedural policies before resorting to discharge. He also claims that DDSI discriminated against him by treating him more severely than a Latino female employee who had engaged in similar misconduct. Kane's claims for wrongful discharge, breach of implied employment contract, and reverse sex discrimination were each dismissed on summary judgment. Kane argues that genuine issues of material fact existed whether he was employed at will, whether he was fired for cause, and whether DDSI discriminated against him. Because Kane signed unambiguous agreements that he was employed at will, we affirm the dismissal of his wrongful discharge and breach of employment contract claims. We reverse the dismissal of his discrimination claim, however, because a factual dispute exists regarding DDSI's intent to discriminate.

FACTS

Because Kane appeals the dismissal of his claims on summary judgment, we present the facts in the light most favorable to Kane.

Decision Data Service, Inc. (DDSI) is a third party computer maintenance provider. Laurie Wilson hired Mark Kane as a branch manager for DDSI's California office in May 1989. In October 1989, Kane relocated to DDSI's Seattle office to work as a sales representative with managerial responsibilities.

In mid-1993, Kane was negotiating a service contract with the McMinnville School District in Oregon. When school district representative Delores Bertrand told Kane that she was interested in buying a computer, Kane recommended that she contact Tom Jensen at Jentronix. Bertrand bought a computer from Jensen. About a month later, Bertrand demanded that Kane refund her money. When Kane called Jentronix, Jensen stated that he was unwilling to buy back the computer back.

Kane's supervisor, Bob Wood, became aware of the McMinnville situation and told Kane to "fix the problem." Kane had not sold the Jentronix computer to Bertrand, but he refunded her money. DDSI policies prohibited employees from selling the products of other companies.

Later that year, Kane negotiated a service agreement with Rob Bahl at the Sea Tac Marriott. Kane then requested a commission to pay Jensen for providing the lead that produced the Marriott contract. On December 1, 1993, Wood questioned Kane over the phone about Jensen's dealer commission. Kane claimed that his contact at the Marriott would corroborate his story that Jensen had introduced them. But when Kane was unable to remember Bahl's name, Wood told Kane that he was fired. Kane was given no notice that his job was in jeopardy, and when he later encouraged DDSI's Human Resources Department to call Bahl, they refused to review Wood's decision.

Kane argues that he was not an at-will employee, relying on an employee handbook and a management guide that both predated his hiring. Kane's first case against DDSI relied on a 1984 employee handbook as the source of an alleged employment contract. Wilson gave Kane a copy of this handbook when he was hired. It provided in part:

We always make every effort to have the disciplinary procedure suitable and appropriate for the violation [of company rules].

Depending on the importance of the rule, the number of times it was violated, and degree of violation, the discipline may vary, progressively, from a verbal warning up to and including (for extreme situations) discharge.

Regarding job performance the employee handbook stated:

When you qualify as a permanent employee and a problem develops .

. ., you will receive a verbal or written warning. This is to inform you of the problem and to help you find a way to correct it.

When job performance is unsatisfactory, your supervisor will first discuss the situation with you. Should it continue to be unsatisfactory, you will receive a written statement from your supervisor. If significant improvement is not achieved after the receipt of the written statement, you may be discharged.

The employee handbook also provided that:

In those unfortunate situations where the Company initiates the termination [of employment], we will make every effort to provide the employee with the fact that his/her employment is in jeopardy and work with him/her to correct the situation. Should improvement not happen, the Company will release the employee[.]

The employee handbook closes with the following remarks:

The intention of this Employee Handbook is to provide you with useful information about your Company, what is expected of you and what you can expect as an employee. The Company's official policies will actually control the decisions in all areas mentioned in the handbook. Further, from time to time the Company will modify, change or eliminate a policy or may add a new one.

In 1986, DDSI distributed a new version of the employee handbook to all its employees. An attached cover letter highlighted the fact that changes to the 1984 handbook included "elimination of the progressive discipline policy to reflect 's Employment at Will policy[.]"

Specifically, the 1986 employee handbook provided:

The procedure for handling job-related disciplinary problems includes oral reprimand, written warning, probation, suspension without pay, and discharge from employment. As disciplinary action is based upon the seriousness of the offense as ...


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