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Taliento v. Portland West (dissenting opinion)

LIPEZ, J., dissenting, with whom ROBERTS and DANA, JJ., join.

	[¶14]  I must respectfully dissent because the court's decision
perpetuates the misapplication of special rules of contract law to claims that
an employment contract of indefinite duration precludes at will termination. 
In my view, the record presented on Taliento's appeal provides an
appropriate basis for revisiting our precedents in this area, reconsidering
the extent to which an employment handbook or personnel policy that
purports to govern termination may constitute a binding contract, and
clarifying the principles of contract law to be applied in these employment
cases.     
I.
	[¶15]  An employment contract is terminable at will unless the parties
specify that the contract is for a definite term, Terrio v. Millinocket
Community Hosp., 379 A.2d 135, 137 (Me. 1977), or that it is terminable
only pursuant to its express terms, Larrabee v. Penobscot Frozen Foods, Inc.,
486 A.2d 97, 99-100 (Me. 1984).  In Terrio we held that the employer's
oral promises that the plaintiff was secure in her job for "the rest of [her]
life" and that she would be employed until "normal retirement age,"
because made "in the context of [the employee's] long service in a position
of substantial responsibility (from which she would normally have retired in
less than seven years), provided the critical evidentiary support for her
contract claim."  379 A.2d at 138.  We also noted that
 
[t]he [employer's] acquiescence in the expanded scope of the contract
issue at trial showed the parties' willingness to go beyond the narrow
issue posed by the pleadings and to try by implied consent the issue of
whether a contract of employment for a definite term arose from the
total factual circumstances, . . . . 

Id. (emphasis added).  Thus, we concluded that an employment contract for
a definite term could be implied in fact because we based our holding on the
circumstances and conduct surrounding the oral promises made to the
plaintiff.  See Restatement (Second) of Contracts § 4 cmt. a (1981) 
("Express and implied contracts.  Contracts are often spoken of as express
or implied.  The distinction involves no difference in legal effect, but lies
merely in the mode of manifesting assent.  Just as assent may be manifested
by words or other conduct, sometimes including silence, so intention to
make a promise may be manifested in language or by implication from other
circumstances, including course of dealing or usage of trade or course of
performance."); § 5 cmt. a ("Agreed terms.  The terms of a promise or
agreement are those expressed in the language of the parties or implied in
fact from other conduct.  Both conduct and language are to be understood in
the light of the circumstances, including course of dealing or usage of trade
or course of performance."); see also Perry v. Sindermann, 408 U.S. 593,
601-02 (1972) ("the law of contracts in most, if not all, jurisdictions has
long employed a process by which agreements, though not formalized in
writing, may be 'implied.'  Explicit contractual provisions may be
supplemented by other agreements implied from 'the promisor's words and
conduct in light of the surrounding circumstances.'  And, '[t]he meaning of
[the promisor's] words and acts is found by relating them to the usage of the
past.'") (citations omitted).  Although Terrio addresses a claim of an
employment contract for a definite term, our recognition of the implied in
fact model of contract formation in that case is significant for our
consideration of the development of the law subsequent to Terrio in cases
involving contracts of indefinite duration.   
 	[¶16]  In Larrabee, the plaintiffs asserted that they "expressly or
impliedly promised to work for the Defendant . . . [and that i]n exchange for
the Plaintiffs' promises, the Defendant expressly or impliedly promised to
pay [them] a specified wage and to refrain from discharging them in bad
faith or without good cause."  486 A.2d at 98.  The plaintiffs also asserted
that their employment contract included terms and conditions contained in
the "General Policy" and "Work Rules" issued by the employer.  Id.  We
noted that 

[w]hile the employment of much of the country's labor force is
governed by the terminable at will rule, a substantial percentage of the
labor force is protected by collective bargaining agreements or are
employed by federal or state governments, and can generally be
discharged only for "just cause."  There is no reason why individuals
not otherwise given this protection and their employers should not be
free to contract against discharge without good cause, as the Plaintiffs
in the instant case allege they did.

Id. at 99 (citation omitted).  We then held that "parties may enter into an
employment contract terminable only pursuant to its express terms-as 'for
cause'-by clearly stating their intention to do so, even though no
consideration other than services to be performed or promised is expected
by the employer, or is performed or promised by the employee."  Id. at 99-
100.  Accordingly, we held that the plaintiffs' complaint was sufficient to
withstand the motion to dismiss.  Id. at 100.  
	[¶17]  Larrabee's establishment of an exception to the employment-at-
will rule was significant in two respects.  For the first time we recognized
that a provision for job security in a contract of indefinite duration could be
binding without additional, independent consideration other than the
services to be performed by the employee.{1}  Second, our holding did not
limit the exception to the employment-at-will rule to those contracts that
provide explicitly that termination can be for cause only.  Our opinion
alludes to "for cause" only as an example of an express term pursuant to
which such a contract could be terminable.  Id. at 99 ("as 'for cause'")
(emphasis added); see Wyman v. Osteopathic Hosp. of Maine, Inc., 493 A.2d
330, 334 (Me. 1985) ("In Larrabee . . . we held that parties may agree to an
employment of indefinite length that is terminable by the employer only
pursuant to particular terms, such as for good cause.") (emphasis added). 
We thereby indicated that the relevant contractual term could consist of
procedural protections (e.g., a particular method of termination), rather
than an enumeration of substantive standards or even the recitation of the
magic words "for cause."  
	[¶18]  However, our position in Larrabee on the implied in fact model
of contract formation we recognized in Terrio is unclear.  We stated that the
plaintiffs "assert an implied contract . . . . [t]hey further assert that this
contract included terms and conditions contained in the writings entitled
'General Policy' and 'Work Rules,'" and noted that pursuant to the
employment-at-will rule "the Plaintiffs' allegations that the Defendant had
entered into an implied contract to discharge them only in good faith and
for good cause would be fatally deficient."  Larrabee, 486 A.2d at 98-99
(emphases added).  We concluded by holding that "this contract
claim"-ostensibly the implied contract claim referenced earlier-is
sufficient to withstand the motion to dismiss.{2}  Id. at 100.  The new rule,
however, allows employees and employers to enter into a "contract
terminable pursuant to its express terms" only "by clearly stating their
intention to do so," id. at 99-100 (emphases added), a requirement that is
seemingly irreconcilable with an implied in fact model of contract
formation.  
	[¶19]  Moreover, in Larrabee we stated that the new exception is
"identical or . . . similar" to those "carved out" by other courts, and we cited
five cases from other jurisdictions in a footnote.  Id. at 100 n.4.  Although
three of those cases allow for the implication of such terms and two do so
explicitly,{3} the two cases cited whose language is identical to that set forth
in Larrabee do not.  Littell v. Evening Star Newspaper Co., from which the
Larrabee rule is drawn verbatim, asserts that 

the parties may enter into a contract for permanent employment--not
terminable except pursuant to its express terms--by stating clearly
their intention to do so, even though no other consideration than
services to be performed is expected by the employer or promised by
the employee.  The meaning of the cases previously referred to is that
where no such intent is clearly expressed and, absent evidence which
shows other consideration than a promise to render services, the
assumption will be that-even though they speak in terms of
'permanent' employment-the parties have in mind merely the
ordinary business contract for a continuing employment, terminable at
the will of either party.  

120 F.2d 36, 37 (D.C. Cir. 1941) (emphases added); see also Shah v.
American Synthetic Rubber Corp., 655 S.W.2d 489, 492 (Ky. 1983) (same).       
Thus, according to the cases from which the Larrabee rule is drawn, there
must be a clear statement of the parties' intention to depart from the
employment-at-will rule pursuant to express terms, unless consideration in
addition to the employee's services is demonstrated.{4}  An express statement
of intent functions as an acceptable substitute for additional consideration. 
Although our decision in Larrabee could be construed as a rejection of 
implied in fact contract claims in the employment context, there was a
lingering ambiguity on the issue because of the procedural posture of the
case and the precedents cited.    
	[¶20]  To the extent that Larrabee left unresolved the viability of
implied contract claims in altering the employment-at-will rule, we resolved
that ambiguity in Libby v. Calais Reg'l Hosp., 554 A.2d 1181 (Me. 1989), by
indicating that exceptions to the employment-at-will rule would be limited
to express contracts.  In addition to reiterating the Larrabee requirement
that the parties clearly state their intention to enter into a contract
terminable only pursuant to its express terms, we cited that case as
authority for the proposition that an employee handbook{5}  "must clearly
state an intent to impose restrictions upon the employer's right to
discharge the employee."  Id. at 1183 (citing 486 A.2d at 99-100) (emphasis
added).  We found that "Libby did not present any evidence of an express
restriction on the [employer's] common law right to discharge her at will." 
554 A.2d at 1183 (emphasis added).  We thereby rejected, in the
employment-at-will context, the applicability of the implied in fact model of
contract formation, a model equivalent in legal effect to that of express
contract formation.{6}  Furthermore, as to the terms of the alleged contract,
we concluded that the handbook at issue "merely provides a method of
discharge and implies that discharge will be for cause only"; that it "does
not . . . clearly limit the [employer] to that method of terminating Libby's
employment, and does not expressly restrict the [employer's] right to
discharge an employee"; and that "[w]ritten or oral language merely
implying that discharge is for cause only is not sufficient to bind an
employer."  Id. (citations omitted).   
	[¶21]  Bard v. Bath Iron Works Corp., 590 A.2d 152 (Me. 1991),
confirmed the turn we took in Libby.  In that case we addressed an
employee's claim that the court had erred in entering a summary judgment
in favor of the employer on his claim that a "Rules and Regulations"
pamphlet he received on commencing his employment created an implied
contract by which he could be discharged only for a violation of one of the
rules or regulations.  Id. at 155.  We reasserted that a contract creating an
exception to the employment-at-will rule "must expressly restrict the
employer's common law right to discharge the employee at will and clearly
limit the employer to the enumerated method or methods of terminating
the employment," id. at 152 (citing Libby, 554 A.2d at 1183), reiterated that
language implying that discharge is for cause only is insufficient, id., and
noted that the record was devoid of the "the requisite clear statement of
intention[] that [the employer] would discharge [the employee] only for
cause."  Id. at 155.  Thus Bard was a further rejection of the implied
contract model  in our evaluation of employment contracts of indefinite
duration. 
	[¶22]  Although we rejected ordinary contract principles in Larrabee,
Libby, and Bard without explaining the need to do so, we may have been
concerned by a perceived lack of mutuality of obligation.  That is, we may
have been concerned that pursuant to the alleged employment contracts of
indefinite duration the employee remains free to depart at any time whereas
the employer is bound by a promise not to terminate except for cause or
unless certain procedures are followed.  However, the "demand for
mutuality of obligation, though appealing in its symmetry, is simply a species
of the forbidden inquiry into the adequacy of consideration. . . . 'If the
requirement of consideration is met, there is no additional requirement of .
. . equivalence in the values exchanged; or . . . mutuality of obligation.'"  Pine
River State Bank v. Mettille, 333 N.W.2d 622, 629 (Minn. 1983) (quoting
Restatement (Second) of Contracts, § 79).  In this context, an employee's
continued performance despite the freedom to leave supplies consideration
for an employer's promises.  Id.
	[¶23]  We have not articulated in Larrabee, Libby, or Bard a sufficient
reason for our departure from ordinary contract principles in our
consideration of employment contracts of indefinite duration, and the court
does not do so in this case.  Our departure runs counter to the trend in the
majority of jurisdictions.{7}  We should end this divergence and apply the law
of contracts implied in fact to employment contracts of indefinite duration. 
Pursuant to the employment-at-will rule, any employment contract that has
no specified term of duration is an at-will relationship, unless the employee
shows that the parties expressedly or impliedly agreed to terminate the
relationship only for particular reasons or by a particular method.  The at-
will rule is merely a rule of construction, not a substantive limitation on
contract formation.  Pine River, 333 N.W.2d at 628.  Also, it is not a
presumption in the evidentiary sense of shifting a burden of proof or adding
to the burden of proof.  An employee who is a party to an alleged contract of
indefinite duration has the burden faced by any plaintiff trying to establish a
claim--in this instance, establishing by a preponderance of the evidence that
there is a contract of indefinite duration containing job security provisions
in the form of "for cause" protections or specific methods of discharge. 
Whether a contract may be implied from an employee handbook or other
documents, oral promises, the conduct of the parties, and other
circumstances is a question of fact for a jury to decide.  See Lawson v.
McLeod, 152 Me. 67, 69, 123 A.2d 199, 200 (1956) (court erred in taking
case from jury when facts and circumstances presented question whether
there was an implied contract); Colvin v. Barrett, 151 Me. 344, 352, 118
A.2d 775, 779 (1955) ("The issue is one of fact, whether under the
circumstances of the particular case the services were rendered on the basis
of contractual relation, either express or implied."); Bryant v. Fogg, 125 Me.
420, 425-26 (1926) (whether there is an implied contract is a question of
fact "peculiarly the province of the jury"); see also Taylor v. Nat'l Life Ins.
Co., 652 A.2d 466, 469-71 (Vt. 1993) (jury question whether there was
implied contract allowing discharge only for good cause created by
personnel policy manual, oral representations to employee, and ambiguous
hiring letter); Toussaint v. Blue Cross & Blue Shield of Mich., 292 N.W.2d
880, 891-92 (Mich. 1980) (whether employer's supervisory manual and
guidelines created contractual rights such that the employment relationship
is not terminable at will is question of fact for the jury). {8}
II.
	[¶24]  Given the above considerations, I conclude that the record at
hand raises a dispute of material fact whether the Portland West Personnel
Policies and the surrounding circumstances created an employment
contract terminable pursuant to its express terms.  Unlike the documents at
issue in Libby, 554 A.2d at 1183, the Policies at issue here include no
language disclaiming an intent to create a contract.  Whereas the handbook
in Libby did not limit the employer to a particular method of termination,
paragraph 11 of Portland West's Policies sets forth the only procedure
pursuant to which the executive director is authorized to initiate a
termination.  Whether the Board of Directors could have terminated Taliento
by following some other procedure is irrelevant because Taliento's
termination was in fact begun by then Executive Director O'Donnell, and the
Personnel Committee, not the Board, decided to terminate Taliento on
O'Donnell's recommendation alone.  The Board then heard an appeal from
the decision of the Personnel Committee, as provided for in paragraph 11.
	[¶25] Furthermore, the record includes ample evidence that
paragraph 11 was generally understood to be the mandatory method of
termination:  both O'Donnell and two board members testified in
depositions that he had to comply with paragraph 11 in terminating
Taliento; Taliento testified to his familiarity with the Personnel Policies as a
program director who was regularly involved in the hiring and firing of staff;
in June 1995, when Taliento told O'Donnell that he wanted to terminate a
staff member, O'Donnell reminded him (in a conversation documented by
O'Donnell's handwritten notes) that he could not do so without following the
paragraph 11 procedures; and O'Donnell admitted that he followed the
requirements when recommending the termination of another employee to
the Board's Personnel Committee later that year.{9}  In sum, the documents
and deposition evidence raise an issue of material fact sufficient to warrant a
jury's determination whether there was a contract implied in fact between
Taliento and Portland West such that Executive Director O'Donnell had to
follow the requirements of paragraph 11 if he wanted to terminate
Taliento's employment.    
	[¶26]  Assuming the Policies were contractually binding, the record
raises another dispute of fact whether O'Donnell complied with the
paragraph 11 procedures, that is, whether his actions constituted a breach
of the employment contract.  In particular, in his deposition testimony
O'Donnell claimed that he had followed the provisions of paragraph 11
before recommending termination to the Personnel Committee, and yet he
admitted that he had "informed [Taliento] of the problem with
communication numerous times during the year, orally and in writing,
specifically in writing the employee evaluation," and that he had
documented the "communication" problem in the evaluation only.  When
asked how he had given Taliento "a stated period to correct the situation,"
O'Donnell responded that "[t]here were numerous oral meetings where I
told Mr. Taliento that he needed to be more of a team player, needed to do a
better job communicating.  I informed the employee throughout the year. 
This was an issue that we came back to over and over again."  Thus,
O'Donnell's deposition testimony arguably reveals that he did not follow his
own understanding of how the paragraph 11 requirements had to be
satisfied, i.e., in writing.  Moreover, as noted, Taliento had just received an
evaluation that was positive and disclosed no "situation" so serious as to
require remedy within a specific period.  Indeed, on the basis of that
evaluation, Taliento received the highest raise given to Portland West staff. 
Thus, O'Donnell's evaluation of Taliento could not have served notice that
there was a performance problem Taliento needed to remedy within a
particular period of time to avoid being terminated.  Also, those involved in
the decision to terminate Taliento testified that they did so based on his
handling of the incident involving a youth in the YouthBuild program who
was wanted by the police, as reported to them by O'Donnell, and not due to
a general concern about communication, the only problem identified by
O'Donnell in his deposition testimony. 
	[¶27]  For these reasons, I would vacate the summary judgment as to
Count I and remand that breach of contract claim for trial.

_______________________________
Attorneys for Plaintiff:					

Glenn Israel, Esq.					
Peter Rubin, Esq. (orally)				
Bernstein, Shur, Sawyer & Nelson			
100 Middle Street					
P. O. Box 9729						
Portland, ME 04104-5029				

Attorneys for Defendant:

Melissa A. Hewey, Esq.
Daniel J. Rose, Esq. (Orally)
Drummond, Woodsum & McMahon
245 Commercial Street
Portland, ME 04104-5081

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FOOTNOTES******************************** {1} The rule set forth in Larrabee can be understood in terms of the requirements for a unilateral contract. A unilateral contract consists of a promise by one party which invites performance by the other party. 1 Arthur L. Corbin et al., Corbin on Contracts § 1.23, at 89 (rev. ed. 1993). The promise "will not be an enforceable contract unless consideration has been given in return for it, or unless there has been some expression of assent to the delivery of a document containing the promise. . . . If this consideration is an action or forbearance instead of a promise, the resulting contract is 'unilateral.'" Id. Thus, a promise of employment on particular terms of unspecified duration may create a binding unilateral contract. Pine River State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn. 1983). Handbook language can constitute an offer, one which is communicated by the handbook's dissemination to the employee, and the employee can accept the offer by retaining employment with knowledge of the conditions, which thereby become contractual obligations. Id. at 626-27. By accepting or staying on the job despite the freedom to decline employment or quit, the employee supplies the necessary consideration for the offer; that is, no additional, independent consideration is required for the formation of the unilateral contract. Id. at 627. As one court has explained: "An employer's offer of a unilateral contract may very well appear in a personnel handbook as the employer's response to the practical problem of transactional costs. Given these costs, an employer . . . may prefer not to write a separate contract with each individual employee." Id. {2} Although, as one commentator has noted, the allegations delineated in the opinion with regard to the implied contract . . . are the only allegations in the opinion that support the allegations of an express contract as well. Thus, the employee would appear to have characterized his allegations as both an express and implied contract. It may very well have been that the case survived a motion to dismiss on the basis of an express contract with factual allegations virtually identical to those in Libby. Russell Goldsmith, Note, Libby v. Calais Regional Hospital: Contracting Out of Maine's Employment-at-Will Doctrine, 42 Me. L. Rev. 553, 558 n.35 (1990). {3} See Strauss v. A.L. Randall Co., Inc., 194 Cal. Rptr. 520, 522 (1983) (employee and employer can contract out of the employment-at-will presumption where (1) the contract was supported by consideration independent of the services to be performed by the employee, or (2) the parties agreed, expressly or impliedly, that the employee could be terminated only for good cause."); Drzewiecki v. H&R Block, Inc. 101 Cal. Rptr. 169, 174 (1972) ("It is fundamental that when construing contracts involving substantial employment rights, courts should avoid mechanical and arbitrary tests if at all possible; employment contracts, like other agreements, should be construed to give effect to the intention of the parties as demonstrated by the language used, the purpose to be accomplished and the circumstances under which the agreement was made. . . . We embrace the prevailing viewpoint that the general rule is a rule of construction, not of substance, and that a contract for permanent employment, whether or not it is based upon some consideration other than the employee's services, cannot be terminated at the will of the employer if it contains an express or implied condition to the contrary."). {4} See Littell v. Evening Star Newspaper Co., 120 F.2d 36, 37 (D.C. Cir. 1941) (additional consideration may consist in "making an investment in the business, . . . resigning from government service, . . . giving up [an employee's] own business, or . . . relinquishing an acknowledged right to recover for injury which [an employee] has suffered"). {5} In Libby we asserted for the first time that "[t]he terms of an employment handbook can be used as the means by which an employment contract may be changed from one terminable at will to one terminable only by its express terms." 554 A.2d at 1183 (citing Toussaint v. Blue Cross & Blue Shield of Mich., 292 N.W.2d 880, 894 (Mich1980)). {6} In Libby we departed from the application of traditional contract principles in another respect. The provisions of the handbook at issue in Libby could have been read as tantamount to a "for cause" standard for dismissal; indeed, our opinion asserts that the handbook "implie[d] that discharge will be for cause only." 554 A.2d at 1183. To the extent that we found the provisions in the handbook and related documents were ambiguous and conflicting, we chose to construe them in favor of the employer, 554 A.2d at 1183, despite the well-established rule that ambiguity is to be construed against the drafter. See John Swenson Granite, Inc. v. State Tax Assessor, 685 A.2d 425, 428 (Me. 1996) (citing T-M Oil Co., Inc. v. Pasquale, 388 A.2d 82, 86 (Me. 1978) (quoting Monk v. Morton, 139 Me. 291, 295, 30 A.2d 17, 19 (1943))). {7} As of this writing, 38 jurisdictions have recognized that implied employment contracts may be found on the basis of language in employee handbooks and in other personnel policies that restricts an employer's right to discharge an employee to particular reasons ("for cause") or procedures for termination. Hoffman-LaRoche, Inc. v. Campbell, 512 So. 2d 725, 728- 34 (Ala. 1987); Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 787 (Alaska 1989); Leikvold v. Valley View Community Hosp., 688 P.2d 170, 174 (Ariz. 1984); Foley v. Interactive Data Corp., 765 P.2d 373, 385 (Cal. 1988); Continental Airlines, Inc. v. Keenan, 731 P.2d 708, 711-12 (Colo. 1987); Finley v. Aetna Life & Cas. Co., 520 A.2d 208, 213 (Conn. 1987), rev'd on other grounds, 626 A.2d 719 (Conn. 1993); Sisco v. GSA Nat'l Capital Fed. Credit Union, 689 A.2d 52, 54-55 (D.C. 1997); Kinoshita v. Canadian Pacific Airlines, Ltd., 724 P.2d 110, 117 (Haw. 1986); Parker v. Boise Telco Fed. Credit Union, 923 P.2d 493, 497 (Idaho 1996); Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317-18 (Ill. 1987); Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 282-84 (Iowa 1995); Morriss v. Coleman Co., Inc., 738 P.2d 841, 847-49 (Kan. 1987); Bagwell v. Peninsula Reg'l Med. Ctr., 665 A.2d 297, 308-09 (Md. Ct. Spec. App.), cert. denied, 669 A.2d 1360 (Md. 1996); O'Brien v. New England Tel. & Tel. Co., 664 N.E.2d 843, 847-49 (Mass. 1996); Toussaint v. Blue Cross & Blue Shield, 292 N.W.2d 880, 893-94 (Mich. 1980); Pine River State Bank v. Mettille, 333 N.W.2d 622, 630 (Minn. 1983); Bobbitt v. The Orchard, Ltd., 603 So. 2d 356, 361 (Miss. 1992); Hebard v. AT&T, 421 N.W.2d 10, 12 (Neb. 1988); Southwest Gas Corp. v. Vargas, 901 P.2d 693, 697-98 (Nev. 1995); Woolley v. Hoffman-LaRoche, Inc., 491 A.2d 1257, 1264-68 (N.J. 1985); Hartbarger v. Frank Paxton Co., 857 P.2d 776, 779-80 (N.M. 1993); Bailey v. Perkins Restaurants, Inc., 398 N.W.2d 120, 122-23 (N.D. 1986); Mers v. Dispatch Printing Co., 483 N.E.2d 150, 154 (Ohio 1985); Gilmore v. Enogex, Inc., 878 P.2d 360, 368 (Okla. 1994); Yartzoff v. Democrat-Herald Publ'g Co., 576 P.2d 356, 359 (Or. 1978); Fleming v. Borden, Inc., 450 S.E.2d 589, 595-96 (S.C. 1994); Butterfield v. Citibank of South Dakota, N.A., 437 N.W.2d 857, 859 (S.D. 1989); Hooks v. Gibson, 842 S.W.2d 625, 628 (Tenn. Ct. App.), appeal denied, (Tenn. 1992); Arnold v. B.J. Titan Servs. Co., 783 P.2d 541, 543 (Utah 1989); Taylor v. National Life Ins. Co., 652 A.2d 466, 471 (Vt. 1993); Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1087-88 (Wash. 1984); Cook v. Heck's, Inc., 342 S.E.2d 453, 459-60 (W. Va. 1986); Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702, 707 (Wyo. 1985); see also Manser v. Missouri Farmers Ass'n, Inc., 652 F. Supp. 267, 273 (W.D. Mo. 1986) (construing Missouri law); Barger v. General Elec. Co., 599 F. Supp. 1154, 1163-64 (D. W. Va. 1984) (construing Virginia law); Streckfus v. Gardenside Terrace Corp, Inc., 504 N.E.2d 273, 275 (Ind. 1987) (dictum); Ferraro v. Koelsch, 368 N.W.2d 666, 668 (Wis. 1985) (dictum). In one state an employer's violation of express provisions of its own written personnel policy constitutes a statutory cause of action for wrongful discharge. Mont. Code Ann. § 39-2-904 (1996). Several jurisdictions also have held that even if the requisites for contract formation are not found, the employee would be entitled to enforce the termination procedures pursuant to a theory of promissory estoppel by demonstrating that the employer should reasonably have expected the employee to consider an employee manual or policy as a commitment from the employer to follow the termination procedures, that the employee reasonably relied on the termination procedures to his or her detriment, and that injustice can be avoided only by enforcement of the termination procedures. See, e.g., Cleary v. American Airlines, Inc., 168 Cal. Rptr. 722, 729 (1980); Continental Airlines, Inc. , 731 P.2d at 712; Kelly v. Georgia- Pacific Corp., 545 N.E.2d 1244, 1250 (Ohio 1989); Taylor, 652 A.2d at 471; Thompson, 685 P.2d at 1087-88. {8} For a helpful discussion of the issues raised by our law on employment-at-will contracts, see Jeffrey A. Thaler, The Common Law of Employment Law in Maine: It's Broke and Needs Fixing, 10 Me. B.J. 316 (1995); Elliott L. Epstein, The Demise of Breach of Employment Contract and Wrongful Discharge Cases, 8 Me. B.J. 242 (1993). {9} Portland West claims that paragraph 11 was intended to apply only to the termination of subordinate employees rather than to that of executive or program directors, but provides no documentation for that assertion.