Monday, October 22, 2018
When Willful Misconduct Is not Necessarily All Other Intentional Misbehavior
Earlier this month the Montgomery County Court of Appeals affirmed a $655,733.44 jury verdict (in addition to$262, 227 in costs, interest and attorney fees) in favor of an executive who it found was terminated in violation of his employment agreement and in bad faith. Becker v. Direct Energy, LP, 2018-Ohio-4134. The Court concluded that the trial court’s jury instruction explaining when the defendant company could terminate “for cause” the executive was correct and that there was sufficient evidence to show that the company acted in bad faith. Thus, when the employment agreement provided that the executive could only be terminated “for cause” if the company “in good faith” believed that he had “engaged in acts of fraud, material dishonesty, or other acts of willful misconduct in the course of his duties hereunder,” the “other acts of willful misconduct” referred to conduct which was similar to “fraud” and “material dishonesty.” Therefore, the jury could conclude that the plaintiff’s behavior did not constitute willful misconduct that the employer acted in bad faith in terminating him for yelling at and poking a subordinate employee who twice in three weeks had violated significant safety rules when the plaintiff had a long history of excellent performance and no prior disciplinary infractions, when other employees had received far less severe sanctions and when circumstantial evidence showed that his potential severance pay could have been a motivating factor for his termination.
According to the Court’s opinion, the plaintiff’s employment agreement provided that the executive could be terminated for cause or without cause. However, if he was terminated without cause, he would be entitled to severance pay (including 24 months of salary and 18 months of COBRA payments), or he could resign with three months’ notice (entitling him up to 3 months of pay if the company opted for an earlier separation). The executive had worked for many years for the company and its predecessors and his performance reviews reflected that his division was one of the most profitable. The company had also been more focused on employee safety.
The plaintiff was responsible for conducting random surprise inspections of employees and found an employee, who had been suspended during the prior year for safety issues, engaged in a number of unsafe practices and serious quality issues. After discussing the issues with the employee, the plaintiff spoke with the employee’s supervisor about taking disciplinary action, but the supervisor never spoke to or terminated the employee. Two weeks later, the plaintiff spoke with the supervisor about whether that employee was even teachable because the supervisor had not properly handled the situation. He then decided to inspect that employee’s work again on his way to another meeting and found some of the same safety violations he had previously noted just two weeks earlier. Stressed because he was running late, the plaintiff lost his temper with the employee. He poked the employee (who was much larger than him) in the chest and yelled at him in a very unprofessional manner. Although he apologized, he also believed that the employee should be fired because of his unsafe practices.
The employee called his wife, who worked in HR for another company and told her that he thought that he was going to lose his job. The next day, he filed several internal complaints about the executive’s unprofessional treatment of him the prior day. The executive admitted that much of the complaint was true. While he denied harassing the employee, he was embarrassed by his behavior. Up to this point, there was no allegation about violence, pushing or physical harm. HR conducted an investigation and the current and former manager both recommended that the executive receive no more than a written reprimand or warning based on his prior record and level of the offense. After a conference call with senior management, HR forwarded a copy of the executive’s employment agreement to legal counsel. During the next conference call, the decision was made to terminate the executive for willful misconduct under his employment agreement.
The executive was informed of his termination and asked to remain until the end of the month. The script prepared for his termination indicated that he was not to be permitted to resign (even though the company’s practice had always been to permit employees to resign at any time for any reason) and that the remaining employees would be told that he was passing the torch, instead of being terminated. The plaintiff filed suit for breach of contract, breach of the duty of good faith and fair dealing, and defamation.
On appeal, the Court rejected the employer’s arguments that the court should have ruled in its favor as a matter of law on the grounds that the plaintiff materially breached the employment agreement. The court found this to involve an issue of fact, which was resolved against the employer at trial.
The Court also agreed that “willful misconduct” under the employment agreement was ambiguous. Under the doctrine of ejusdem generis, because “the agreement used the term “or other acts of willful misconduct,” it can be read, under an established principle of construction, to indicate that willful misconduct was intended to relate back and be confined to the same general nature as the previous, more specific terms, which were fraud and material dishonesty.” Indeed, the former executive who had hired the plaintiff testified (without objection) that this is what he meant when that term was inserted into the employment agreement. In addition, “[t]here is no dispute about the fact that [the defendant’s] legal counsel prepared the agreement, and Ohio law is settled that ambiguities in contracts are construed strictly against the drafter.” The employer could have avoided the ambiguity by defining the term “other acts of willful misconduct” or deleted “other,” which had referred back to the earlier specific acts.
The Court also rejected the employer’s argument that there was no evidence (i.e., admissions) that the plaintiff had been fired in order to avoid paying his severance pay because circumstantial evidence may support a verdict as well as direct evidence. The jury had ample circumstantial evidence that the employer had acted in bad faith. The HR employees had not initially recommended more than a written warning for the plaintiff’s misconduct. After this, she then learned that the plaintiff’s most recent performance evaluation had been “exceeds expectations,” and she provided his employment agreement to counsel. Consideration of the employment agreement could support a plausible inference that the severance pay factored into the decision, particularly because none of the witnesses recalled any discussion as to whether violation of the harassment/workplace violence policies would similarly constitute willful misconduct under the agreement or whether there were any grounds to terminate him for cause under the agreement. The employer also prepared a script for the termination meeting which did not permit the plaintiff to voluntarily retire and which gave a false reason for his separation. The actual decisionmaker was not called to testify as to the basis for their decisions. There was also testimony that the employer did not have a zero tolerance workplace violence policy and comparisons to other similar situations show that the plaintiff was treated much more harshly for a first time disciplinary infraction.
As for the jury instructions, the Court found that the trial court’s instruction were proper: “the terms fraud or material dishonesty may be instructive regarding the seriousness required for behavior * * * to constitute an other act of willful misconduct.” Moreover,
As indicated above, the agreement provides that the termination must be made in, quote, “good faith.” Thus, a second issue is whether [the defendant’s] termination of [the plaintiff] on the basis that his conduct was an act of willful misconduct, breached [its] obligation to exercise good faith and fair dealing in interpreting the agreement to justify terminating [his] employment.
The jury was also instructed that “it could not find for [the plaintiff] regarding a breach of good faith and fair dealing unless it found that [the employer’s] action in terminating [him] from his position for cause
“was not an act of honesty in interpreting and applying the language in the Employment Agreement, but was instead an act of dishonesty in applying the definition of cause for an ulterior purpose or motive, and not a truthful interpretation or application of the definition of “cause” as contemplated by the parties.
As for the award of attorney’s fees, they generally are not awarded in the absence of punitive damages or statute. However, the Court recognized an exception for when “a prevailing party may be awarded attorney fees after demonstrating the unsuccessful litigant’s bad faith.” In this case, “[b]ad faith can involve conduct during litigation, but can also involve conduct giving rise to a party’s claim.” “The jury did not just find that [the employer] had breached the duty of good faith and fair dealing; it specifically found that [it] had acted to take advantage of [the plaintiff].” The jury unanimously agreed that the employer had acted in bad faith when responding to one of the jury interrogatories:
Do you find that Plaintiff proved by the preponderance of the evidence that Defendant’s decision to terminate him “for cause” was made in bad faith to take advantage of Plaintiff and improperly deny him the benefits he would have received if he had been terminated “without cause” under the contract?NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.