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Suzetteb Y. Bollinger v. Fall River Rural Electric

March 1, 2012

DOES 1-5,

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Fremont County. Hon. Darren B. Simpson, District Judge.

The opinion of the court was delivered by: J. Jones, Justice.

2012 Opinion No. 36

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

This appeal arises from Fall River Rural Electric Cooperative, Inc.'s termination of an employee, Suzette Bollinger. Bollinger appeals the district court's grant of summary judgment to Fall River on all of her claims. Because we find that Bollinger was an at-will employee at the time of her discharge and Fall River breached no contractual or tort duty to her in terminating her employment, we affirm.



Fall River hired Bollinger to work as a cashier and receptionist at its Ashton headquarters in October 1988. She was promoted to the position of Energy Auditor in 1993 and also assumed the position of Member Services Representative in 2006. She continued in those positions until February 2008, when she assumed the position of Safety & Loss/Facility Director. Bollinger's employment with Fall River was terminated in July 2009. Bollinger's performance was satisfactory at all times, and it is undisputed that her discharge was without cause.

Although Bollinger alleged in her Complaint that she signed an employment contract at the time of her hiring, she failed to produce that contract or any evidence of its contents. Fall River's termination policy changed several times throughout Bollinger's employment. At the time of her hire in 1988, Fall River had a "for-cause" termination policy for regular employees, with an exception for layoffs due to a lack of work. Fall River also maintained an "Employee Seniority" policy, adopted in 1977, which provided that employees would be given preference for employment seniority with Fall River in regard to "promotions, demotions, transfers, lay-offs and recalls."*fn1 In October 2004, Fall River adopted a "Work Standards and Personal Conduct Policy," which detailed the Cooperative's disciplinary policy and stated that "[e]mployment with the Cooperative is voluntary and may be terminated by the employee or the Cooperative at any time for any lawful reason." The 2004 policy expressly superseded any prior conflicting policy. The record is unclear how this policy was distributed and whether Bollinger received notice of it, but her affidavit shows that she was generally aware of Fall River's employment policies.

In March 2009, Fall River adopted an "Employment-At-Will" policy, which provided:

All employees who do not have a separate, individual written employment contract for a specific fixed term of employment are employed at the will of the company and may be terminated by the company at any time, for any reason, with or without notice, except as prohibited by law or the express provisions of any applicable labor agreement. Any contract or agreement that specifies a fixed term of employment must be approved by the board of directors and signed by the president [or] general manager of the company.

The 2009 policy also provided:

Nothing contained in this manual, employee handbooks, employment applications, Cooperative memoranda, or other materials provided to employees in connection with their employment require the Cooperative to have just cause in order to terminate any employee at any time or for any reason. Provided, however, that the Cooperative will not terminate any employee for reasons that violate state or federal law, or the express provisions of any applicable labor agreement.

The 2009 policy also expressly superseded any prior conflicting policy. On April 6, 2009, Fall River distributed this policy to all employees via email, and Bollinger admits that she received that email.

In 2007, Fall River created the position of Safety & Loss/Facility Director to oversee safety programs and report to the Operations Manager and promoted Bollinger to that position on February 28, 2008. Bollinger's duties in that position involved implementing and carrying out state and federal laws and regulations, including conducting monthly safety meetings, overseeing safety programs required by the Occupational Safety and Health Administration (OSHA), maintaining safety compliance records, following up on accident investigations, purchasing safety equipment, and performing safety and compliance inspections. Bollinger was also responsible for reporting to Fall River's management any failure to comply with an applicable safety law, rule, or regulation.

According to Bollinger, Fall River General Manager Bryan Case refused to take measures to remedy safety compliance issues Bollinger brought to his attention, ignored requirements for equipment, and became hostile toward her.*fn2 According to Case, Fall River took remedial action on most safety issues raised by Bollinger, although admittedly not as quickly as Bollinger preferred. According to Case, Fall River spent more on safety in 2009 than any recent year. Although she testified that she kept notes on the alleged safety violations to protect herself, Bollinger never reported or threatened to report any safety issues at Fall River to OSHA or any other regulatory authority.

On July 29, 2009, Bollinger was called into a meeting with Case and others and told that her position had been eliminated and her employment with Fall River had been terminated. She was given a severance agreement to take home and review, escorted to her office, and told to gather her personal items. She was given thirty minutes to do so, and two superiors helped box her belongings. According to Bollinger, she felt rushed and the superiors told her to hurry because they had a meeting to attend. She was offered a ride home but declined and was later given at least two letters of recommendation from her superiors at Fall River.

According to Fall River, Bollinger's termination was part of a larger reduction in workforce to address budgetary concerns related to the recession. Case's affidavit pointed out that on May 11, 2009, Fall River offered an early retirement package to certain senior employees, five of whom chose to participate. Subsequently, Case recommended to Fall River's Board of Directors the elimination of five additional positions, one of which was Bollinger's, and that recommendation was approved on July 27, 2009. Bollinger's position was reabsorbed by the Operations Manager, who previously oversaw and administered Fall River's safety programs. According to Bollinger, the minutes of the Fall River Board of Directors meetings around the time of her termination show that it was not experiencing any financial problems. However, as the district court found, those minutes contain references to "the economic ...

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