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Taliento v. Portland West
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1997 ME 194
Docket:		Cum-96-812
Argued:		April 9, 1997
Decided:		August 29, 1997 

Panel:	WATHEN, C.J., and  ROBERTS,  GLASSMAN, CLIFFORD, RUDMAN, DANA and 
	LIPEZ, JJ.
Majority:  WATHEN, C.J., and  GLASSMAN, CLIFFORD, and RUDMAN 
Dissent:  ROBERTS, DANA and LIPEZ, JJ.



NEIL TALIENTO v. PORTLAND WEST NEIGHBORHOOD PLANNING COUNCIL


CLIFFORD, J.

	[¶1]  Neil Taliento appeals from the judgment entered in the
Superior Court (Cumberland County, Mills, J.), pursuant to a motion for a
summary judgment, in favor of the Portland West Neighborhood Planning
Council (Portland West) on his breach of employment contract claims. 
Taliento contends that the court erred by finding there is no issue of
material fact whether Portland West's Personnel Policies altered his status
as an employee who could be terminated at will (Count I); by finding he had
no contractual right to an appeal process in which the president of the
Board of Directors may cast a vote only to break a tie (Count II); by finding
that oral promises by Portland West's Executive Director Peter O'Donnell
did not create an employment contract for a definite period of time and
thereby limit O'Donnell's ability to recommend his termination (Count III);
and by finding no issue of material fact whether he was an intended third-
party beneficiary of the federal Housing and Urban Development (HUD)
grants that fund Portland West's YouthBuild Portland program (YouthBuild)
and that he therefore did not have an employment contract for the grant's
two-year duration (Count IV).  We are unpersuaded by Taliento's claims and
affirm the judgment.
	[¶2]  Portland West is a neighborhood group that acts as an umbrella
organization for a number of community programs funded primarily by
federal, state, and local grants.   In January 1990 Taliento was hired by 
Portland West as director of its Community Employment Project (CEP).  He
signed no employment contract and was not promised a specific duration of
employment.
	[¶3]  As a program director, Taliento was regularly involved in hiring
and terminating staff, and was familiar with Portland West's Personnel
Policies, including those stipulating that such decisions required the
approval of the Board of Directors.  The Policies contain no promises of
continued employment or employment for a specific term, do not limit
termination of employment to situations of just cause, and do not provide
criteria for employee discipline or termination.  Paragraph 11 of the Policies
provides:

Termination:  The Executive Director and the Program Director have
the authority to recommend termination of an employee to the
Personnel Committee only after documenting the problem; informing
the employee and giving the employee a stated period to correct the
situation.  The employee may appeal any decision of the Personnel
Committee to the full Board of Directors.

Executive Director Peter O'Donnell testified that in recommending the
termination of another employee to the Personnel Committee later that
year, he followed the Policies.
	[¶4]  In 1994 Portland West applied for a grant from HUD to fund a
new program, YouthBuild.  Taliento helped write the application (which
apparently{1} listed him as program director), and that summer Portland West
obtained the grant to fund YouthBuild for 18 months.  Once the grant was
awarded Taliento left CEP and became the YouthBuild director, but he
signed no employment contract and there were no conversations
concerning changes in his employment status.  In December James Oliver
was replaced as Executive Director by O'Donnell.  In the spring of 1995
Taliento completed an application for a two-year renewal of the HUD grant,
that listed him as YouthBuild program director as well as all the other then
current YouthBuild employees.  O'Donnell admits that they intended for
Taliento to continue as YouthBuild director for the duration of the grant. 
The grant was reviewed, and Taliento asserts that his salary as YouthBuild
director was paid by it.
	[¶5]  In October 1995 O'Donnell issued a positive, written annual
performance evaluation for Taliento, saying that he met or exceeded
expectations in every category.  When the two men met about the evaluation,
O'Donnell gave him the maximum raise of five percent and, by Taliento's
account, told him that "as long as [he] was executive director of Portland
West, [Taliento] could count on having a job here."  O'Donnell has testified
that he may have said, "Neil, as long as I'm around, I would like you also
working here."  One month later, however, O'Donnell recommended to the
Personnel Committee that Taliento be terminated on account of his handling
of a situation involving a youth in the YouthBuild program who was wanted by
the police.  Although O'Donnell testified that in recommending Taliento's
termination he met the requirements of paragraph 11 of the Policies, it is
unclear that he did so.  The Personnel Committee of the Board of Directors
voted to terminate Taliento based on O'Donnell's recommendation.  Shortly
thereafter, O'Donnell informed Taliento that he had been terminated, and
that he should clean out his desk and leave immediately.  Taliento exercised
his right of appeal, appealing the termination to the full Board.  Following a
hearing, the Board denied Taliento's request for reinstatement by a 7-7 vote,
with President Bryant casting the tying and deciding vote.
	[¶6]  Taliento then filed the present complaint alleging four counts of
breach of contract:  failure to satisfy the Personnel Policies termination
requirements (I), failure to adhere to established appeals practices (II),
failure to honor the promise of continued employment allegedly made by
O'Donnell (III), and failure to honor an implied two-year employment
contract allegedly created by the HUD grant (IV).  The court granted
Portland West's  motion for a summary judgment  in its favor on all counts. 
This appeal is from the judgment.
	[¶7]  Pursuant to M.R. Civ. P. 56(c), a court properly enters a
summary judgment if there is no genuine issue as to any material fact and a
party is entitled to such a judgment as a matter of law.  We review the entry
of a summary judgment for errors of law, viewing the evidence in the light
most favorable to the party against whom judgment was entered.  Lynch v.
Ouellette, 670 A.2d 948, 949 (Me. 1996).  We undertake an independent
review of the record to determine whether there is a genuine issue of
material fact and if the moving party was entitled to a judgment as a matter
of law.  First Citizens Bank v. M.R. Doody, Inc., 669 A.2d 743, 744 (Me.
1995).
	[¶8]  Taliento contends that the court erred by entering a summary
judgment in Portland West's favor on Count I because there is a dispute of
fact whether Portland West's Personnel Policies created an employment
contract terminable only pursuant to its express terms, thereby altering his
status as an employee who could be terminated at will.  In particular,
Taliento argues that Executive Director O'Donnell was bound to follow
certain procedures pursuant to paragraph 11 of the Policies if he wanted to
initiate a termination of Taliento, and that the language of paragraph 11
restricted Portland West's right to discharge Taliento.  He claims that the
paragraph's plain language required O'Donnell to document the
performance problem at issue, inform Taliento of the problem, and give him
"a stated period to correct the situation."  Taliento also argues that
O'Donnell's compliance with the graduated termination procedure set forth
in paragraph 11 is a disputed issue of fact.  He contends, therefore, that the
existence of genuine issues of material fact precluded a summary judgment
for Portland West on this count of his complaint.  We disagree.
	[¶9] "In Maine, it has long been the rule that a contract of
employment for an indefinite length of time is terminable at the will of
either party."  Larrabee v. Penobscot Frozen Foods, 486 A.2d 97, 99 (Me.
1984).  Parties may provide that an employer is not free to discharge an
employee without cause, but the intent to do so must be clearly stated. 
Id. at 99-100.  Such a restriction cannot be implied from the employment
contract.  Id. at 99.  Rather, the only exception to the employer's common
law right to discharge an employee at will is a contract that "expressly"
restrict[s] [such a right] and clearly limit[s] the employer to the enumerated
method or methods of terminating the employment."  Bard v. Bath Iron
Works Corp. 590 A.2d 152, 155 (Me. 1991) (citing Libby v. Calais Reg'l Hosp.
554 A.2d 1181, 1183 (Me. 1989).
	[¶10]  In Libby, we made clear that language in an employee
handbook (a document similar in relevant respects to a personnel policy),
providing a method of discharge and implying that discharge of an employee
will be only for cause, is insufficient to restrict the employer's common law
right to terminate the employment.  Libby, 554 A.2d at 1183.
	[¶11]  In this case, as in Libby, the personnel policy merely provides a
procedure to be followed, a method of discharging an employee.  It does not
"clearly limit [Portland West] to that method of terminating [Taliento's]
employment, and does not expressly restrict [Portland West's] right to
discharge an employee."  Id.
	[¶12]  Moreover, Taliento's claim is based on O'Donnell's failure to
fully comply with some of the procedural provisions of paragraph 11 of the
Personnel Policy.  Taliento was discharged, however, not by O'Donnell, but
by the Personnel Committee.  The restriction in paragraph 11 is on the
authority of the Executive Director and the Program Director and does not
affect the authority of the Personnel Committee, nor that of the Board of
Directors.  Taliento also exercised his right to appeal to the Board of
Directors and was afforded a full hearing.  The failure of that appeal is
insufficient reason to for us to discard or ignore the law that is clear and
well-settled.  The Superior Court correctly determined that a factual dispute
as to the failure of the Executive Director to follow a procedure in paragraph
11 of the Personnel Policy does not create a cause of action for wrongful
discharge.  
	[¶13]  Taliento's other contentions do not merit extensive
consideration.  There is nothing in the record to support a contract claim
that Taliento was entitled to an appeal process in which the President of the
Board could vote only to break a tie, and therefore no dispute of material fact
exists on that point.  Given O'Donnell's lack of authority to unilaterally hire
Portland West employees as well as the indefinite nature of his promise, the
oral promises he made to Taliento did not create an enforceable contract for
a definite term of employment as a matter of law.  There is no evidence that
either Portland West or HUD intended to confer an enforceable benefit upon
Taliento pursuant to  the HUD grant awarded to fund YouthBuild; he was
therefore at most an incidental beneficiary of the grant.  See Devine v. Roche
Biomed. Labs., 659 A.2d 868, 870-71 (Me. 1995) (an incidental beneficiary
cannot sue to enforce third party beneficiary rights); Restatement (Second)
of Contracts § 302 (1981).
	The entry is:
			Judgment affirmed.  
FOOTNOTES******************************** {1} The 1994 grant application is not in the record.

Webmaster's note: Because of the combined length of the two p opinions in this case, the dissent has been posted as a separtate file. JCC
Link to Taliento dissent.
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