Wednesday, November 17, 2004



Subjective Objective

As a general matter of principle, I do not post comments on cases that I am either involved in or have been involved in. Since this is my first substantive posting in over a year, I will make an exception to that rule. In further defense, I would note that the matters at issue during the period of my involvement are no longer at issue. The various disputes between my client, Michael Conte, Ph.D., and Towson University continued to fester after my representation of Dr. Conte ended. Litigation ensued and the Court of Appeals of Maryland issued an opinion in that case today.

Dr. Conte was the director of the Regional Economic Studies Institute at Towson University. He held that position pursuant to the terms of a written employment agreement.

The employment agreement provided that he could only be discharged for "cause." Cause was defined to "include" eight specific grounds set forth in the written document. The University terminated Dr. Conte's contract alleging "incompetence" and "wilful neglect of duty"—two of the grounds that constituted "cause" enumerated in the written agreement. Dr. Conte filed suit for breach of contract in the Circuit Court for Baltimore County.

At trial held before a jury, Dr. Conte prevailed and obtained a judgment for over $900,000 for breach of contract. The jury had been instructed that the "University [had] the burden to prove by a preponderance of the evidence that one or more of the [causes in Dr. Conte's] contract existed for [his] termination." (Emphasis added by the Court of Appeals.) The Circuit Court rejected a request by the University to instruct the jury that the University was nevertheless permitted to terminate Dr. Conte for "common law cause" or cause that goes to the "essence of the contract."

The Court of Appeals considered a spectrum of three different provisions concerning the right of employers to terminate an employee.

At one end of the spectrum is the at-will contract of employment. Here, the employee is subject to termination "for any reason, even a reason that is arbitrary, capricious, or fundamentally unfair." Manifestly, the written contract between Dr. Conte and the University did not allow such an unbridled right of termination.

Somewhere in the middle of the spectrum is the so-called "satisfaction contract" in which:
[T]he employer has the right to terminate the contract and discharge the employee, whenever he, the employer, acting in good faith is actually dissatisfied with the employee's work. This applies, even though the parties to the employment contract have stipulated that the contract shall be operative during a definite term, if it provides that the services are to be performed to the satisfaction of the employer. It is not necessary that there exist grounds deemed adequate by the trier of facts for the employer's dissatisfaction. He is the judge as to whether the services are satisfactory. However, this dissatisfaction, to justify the discharge of the employee, must be real and not pretended, capricious, mercenary, or the result of a dishonest design. If the employer feigns dissatisfaction and dismisses the employee, the discharge is wrongful. The employer in exercising the right of dismissal because of dissatisfaction must do so honestly and in good faith.
(Emphasis by the Court of Appeals.)

However, the contract between Dr. Conte and the University was a "just cause" contract. That is, it could be terminated only for cause as set forth in the written document itself. The Court held that in reviewing a breach of contract claim for wrongful termination under a "just cause" contract:
[T]he proper role of the jury is to review the objective motivation [of the employer], i.e., whether the employer acted in objective good faith and in accordance with a reasonable employer under similar circumstances when he decided there was just cause to terminate the employee. The jury's inquiry should center on whether an employer's termination was based upon any arbitrary, capricious, or illegal reason, or based on facts not reasonably believed to be true by the employer. But the fact-finding prerogative will remain with the employer, absent some express intention otherwise.
In other words, the jury need not determine whether there was actually "cause" for termination as set forth in the contract. Instead, the inquiry is only whether the employer, in good faith, thought there was cause for termination at the time it terminated the employee. As noted by Chief Judge Bell in his dissent, underlying the majority opinion is the "the strong judicial policy against interfering with the business judgment of private business entities." (Judge Eldridge also dissented, but on other grounds.)

However, the majority opinion was also based in large measure on the question of whether the "fact-finding perogative" to determine if cause for termination exists rests with the employer. Presumably, a contract could be drafted that states that whether or not cause for termination exists is a matter of objective fact and that, in the event of a dispute, either a judicial tribunal or an arbitrator can make a determination as to whether appropriate grounds for termination existed.

I think that Chief Judge Bell has the better part of the argument here. Succinctly put, the majority opinion offers "little, if any, distinction between the test [it enunciates] for the review of 'just cause' contracts and that applicable to satisfaction contracts." Quoting Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N. W. 2d 880, 896 (Mich. 1980), he notes that:
Where the employee has secured a promise not to be discharged except for cause, he has contracted for more than the employer’s promise to act in good faith or not to be unreasonable. An instruction which permits the jury to review only for reasonableness inadequately enforces that promise.
For some years, courts have been under fire by conservatives and pro-business groups for allegedly "legislating" and dictating what the law is based upon their normative views of what the law should be. In the Conte opinion, the Court ruled in favor of an employer being allowed to exercise its "business judgment," thus preventing a independent third-party from making an objective factual analysis that might lead to a contrary conclusion. I'm not going to hold my breath waiting for conservative, pro-business criticism of the decision.

1 comment:

jac said...

Thanks much for this informative post.